STEP 1: General Introduction Principles

STEP 1: General Introduction – Principles

Need to consider the various principles informing administrative law...

Constitutional supremacy: governmental jurisdiction, Charter

Parliamentary sovereignty: democracy results in elected representatives who have the ability to legislate and delegate powers; legislation can supercede CL where there is express legislative intent; flexibility and efficiency are integral components to workings of government

Rule of law: Courts have duty to prevent government from exercising powers in an arbitrary manner (Roncarelli); includes CL principles of natural justice

·  Audi alterem partem (requires DM to “hear the other side” in a dispute”); refers to the right to have a hearing and reasons

·  Nemo judex in sua causa (a man cannot be a “judge in his own cause”); right to have an impartial, unbiased and independent adjudicator

International instruments: Canadian government may have entered into certain international agreements which can inform judicial review

STEP 2: Review the Statute

·  Identify the purpose of statute (whether express or implied)

o  May be informed by Minister’s statements, press releases, history of usage

·  In context of procedural fairness, is this an AT whose procedures approach judicial or do they have more informal procedures?

·  Look for limitations, descriptions of powers and duties (may/shall), statutory rights of appeal, privative clauses

·  Privative clauses vary in wording but will generally include:

1)  grant of exclusive jurisdiction over the subject matter

2)  declaration of finality with respect to the outcome, and

3)  a prohibition on any court proceedings to set the outcome aside

o  Full PC = deference; Partial or equivocal PC = neutral; Absence of PC = neutral

o  Perfect PC: “exclusive jurisdiction”, can determine own jurisdiction or questions of law

o  Strong PC: may include words like “binding,” “conclusive,” “unappealable,” denial of judicial review (Pushpanathan), may limit JR remedies

o  Partial PC: requires leave from Courts, statute unclear or silent on standard of review

STEP 3: Identify Relevant Facts/Factors

·  Do not write this down if not applicable at this point (just consider!!!)

Discretion (may be relevant, particularly at JR stage)

·  Fact based grounds: bad faith (Homex), dictation/influence (Roncarelli), unlawful delegation of powers, wrongful fettering (pre-judging, mechanical rule-application) (Thamotharem)

·  Interpretive grounds: improper purpose (Shell Canada), unreasonableness (Baker), relevant and irrelevant factors: misinterpret statute or overlook evidence (Baker)

STEP 4: Availability of Judicial Review

Legislative decisions re: delegation which are not reviewable

·  Some legislative decisions may be delegated to DMs and are still not reviewable (Thorne’s Hardware)

·  Guidelines may not constitute fettering (Thamotharem)

·  Regulations are reviewable but courts tend to stay away because grant of discretion is usually broad (Enbridge)

Where Judicial Review Available

Is JR an option?

·  Is the tribunal a public body?

o  If the body in question is fulfilling a public law function, it is subject to JR. Consider the statute.

·  Is the applicant a party to the action or do they have some collateral interest in the matter?

·  Are there any other discretionary or statutory bases for refusing a remedy?

o  The applicant does not come with clean hands

§  Homex: although the DoF was breached, the court refused Homex a rehearing with procedural fairness b/c they were not negotiating in good faith.

o  Have all other adequate means of recourse for challenging the tribunal’s action’s been exhausted?

§  Harelkin: access to JR was denied b/c internal appeal to the Senate was an option

o  Is there a privative clause that does not permit Court to review?

§  Courts can only look as issues of questions of law.

·  Is there a statutory right of appeal?

§  (Is it available as of right or is leave required?)

·  Things to Consider:

o  Domtar: Conflicting interpretations b/n tribunals do not give rise to JR; a lack of unanimity is the price to pay for freedom and independence of AT

STEP 5: Procedural Fairness Judicial Review

In Knight, L’Heureux-Dube noted that the “duty of fairness is entrenched in the principles governing our legal system.” The duty of fairness is based on the CL doctrine of natural justice, and absent legislative direction/override, it requires two things: (1) the right to be heard and (2) the right to an independent and impartial hearing. The concept of DoF is variable and its content must be decided in context (Baker). As such, a Court will ask the threshold question: is this the kind of decision that should attract some kind of procedural right?

·  In Nicholson, the Court held that a general duty of procedural fairness applies to administrative decisions that affect the rights, interests, or privileges of an individual.

·  PF must yield to contrary legislation (Ocean Port)

·  If the statute is silent on PF, the court will read PF in on the presumption that the legislature intended to protect the CL DoF (Nicholson)

·  PF does not apply to legislative or questions of a general nature b/c they are subject to political accountability (Tapirisat, Re CAP) UNLESS the policy decision has an immediate and specific target (Homex)

·  A right to PF can be postponed in the event of an emergency; overarching concerns of safety and security can diminish fairness rights (Cardinal)

·  PF does not require administrative bodies to act like courts; rather, they must work within a flexible system that is fair (Baker)

·  DoF doesn’t apply in dismissal of public office holders where employment contracts address PF concerns (Dunsmuir)

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Charter Considerations (NOTE: MAY NOT APPLY IF NO BREACH OF S. 7 OR OTHER CHARTER RIGHT)

The Constitution and Canadian Charter of Rights and Freedoms represent the supreme law of Canada. All administrative/judicial decisions must necessarily take this into account. However, in order for the Charter to apply, the power must be one that is exercised by a government DM or involve the specific implementation of a government policy or program (does not apply to all admin DMs, such as those who deal with universities, clubs, societies, etc. As per Singh, the Charter overrules legislative intent and s. 7 applies to anyone physically present in Canada whether or not they are a citizen.

Section 7

S. 7 of Charter stipulates that “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.” As such, this section may be employed when considering procedural fairness as long as applicant meets initial threshold of establishing that “life, liberty, and security” interests are impaired by administrative decision.

Is the right/interest impaired a POFJ contained in s. 7 of the Charter?

·  Onus is on A to establish impairment of s. 7 rights

o  Liberty can be engaged both by physical restraint and by state compulsions or prohibitions that affect important and fundamental life choices (Singh)

§  Liberty is not synonymous with unconstrained freedom.

o  Security of the person protects both physical and psychological integrity of the individual but does not protect generalized right of dignity and some amount of stress/stigma must be accepted (Blencoe)

·  Requires notice and an opportunity to respond to the facts upon which government/AT intends to rely (Suresh)

o  Final decision cannot be based on any material outside the record (Singh)

o  An oral hearing is required where credibility is an issue (Singh)

o  Includes duty to give responsive written reasons (Suresh)

·  Requires disclosure, subject to privilege and the interest of national security (Suresh)

·  Substitutions for full disclosure may be permitted if proved adequate (Charkaoui)

·  PF is reduced in situations of national security or where safety is a concern (Charkaoui, Cardinal)

·  If seeking convention refugee status, A must make out a prima facie case of a risk of torture

o  If procedural requirements are met, applicant can be deported (Suresh)

·  Delay alone will not warrant a stay of proceedings as an abuse of process (Blencoe)

o  To be deemed an abuse of process, the undue delay must be clearly unacceptable, have directly caused significant prejudice or been so oppressive as to taint the proceedings

o  Determination of whether a delay is inordinate is not based on length of the delay alone but on contextual factors including the nature of the rights at stake, the complexity of the proceedings, allocation of responsibility for delay, similar cases etc

Where an Admin Decision Infringes Charter Right (focus of review is the admin decision itself)

Orthodox Approach from Slaight/Multani (this is the standard approach):

1.  Examine if administrative decision infringes a Charter right

·  Admin law relevant to analysis of jurisdiction, determination of facts, application of law

2.  Turn to s.1 Charter review for more critical justificatory analysis

·  Charter infringement means administrative tribunal has exceeded its jurisdiction

·  If complainant does NOT establish infringement of Charter right, no s.1 analysis occurs, and court can review via administrative law

·  Note: with s. 7, seems rare that s. 1 argument will succeed

·  If establishment of infringement, Oakes test:

§  Pressing and substantial objective

§  Rational connection

§  Minimal impairment

§  Deleterious effects

Two Other Approaches to Consider (not standard)…

Mixed Approach (Slaight)

1.  First use administrative law principles to review legality of the decision

·  Jurisdiction, fact, application and interpretation

·  Ask if discretion exercised unreasonably

·  If yes, set aside order

2.  If discretionary decision survives administrative law analysis, then turn to Charter s.1 analysis

Admin Law Approach (Multani)

·  Apply standard of review analysis

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Content of PF

May include one or more of the following:

·  Right to notice of a potential decision (Homex)

·  Right to disclosure of particulars (Charkaoui)

·  Right to make written submissions (Nicholson, Baker)

·  Right to a hearing within a reasonable time (Blencoe)

·  Right to an oral hearing (Baker, Singh) where: serious import, reputation, livelihood, personal security

·  Right to written reasons for a decision (Baker, Dunsmuir, Khosa) where: significant consequences to individual, statutory right of appeal, constitutional rights

§  The right to written reasons should not be underemphasized as reasons constitute the primary form of accountability of the decision made to the applicant, the public, and to the reviewing court (Khosa)

There are 5 non-exhaustive criteria to consider in determining the content in a particular context which were outlined in Baker:

1)  The nature of the decision

o  More Judicial/quasi-judicial (resembling bi-polar adjudication of interests) = more PF

§  Decisions resolving disputes by finding facts and applying law are likely to demand more PF (Baker)

o  Discretionary = less PF (Baker)

o  Polycentric (affects many different interests simultaneously) = less PF (Baker)

o  Legislative or general in nature = no PF (Inuit Tapirisat)

2)  The nature of the statutory scheme

o  Finality/de facto finality of decision = more PF (Singh)

o  No appeal procedure = more PF (Baker)

o  Investigatory process (preliminary steps) = less PF (Baker)

3)  The importance of the decision the individual affected

o  Greater impact = more PF (Cardinal, Baker)

o  Note: DM may have deference wrt selecting appropriate procedures; existence of Charter rights may invalidate this (Singh)

4)  Whether the doctrine of legitimate expectation applies – LE = where, based on conduct of a public official, a party has been led to believe rights would not be affected w/o consultation or if led to expect a specific outcome

o  Long-standing practice = LE of PF

o  Promise = LE of PF (Mount Sinai)

o  Legislative body or capacity = no LE of PF (e.g. Inuit Tapirisat)

o  Commitment to International Conventions may apply (Baker, Suresh)

5)  The DM’s choice of procedures

o  Greater discretion = less PF (Baker)

o  Expertise in developing procedures = less PF (Baker)

o  Institutional constraints (need for efficiency, etc.) = less PF (Baker)

Having determined general level of PF, court will then decide from a range of possibilities what specific procedures are required.

·  Procedural fairness does not affect outcomes, substance of decisions (Re CAP, Baker)

o  If the court decides PF was violated, the matter will be sent back to the tribunal for reconsideration and they will be ordered to afford the proper procedural fairness.

·  A failure to afford a fair hearing, the very essence of the DoF, always invalidates the decision (Cardinal)

STEP 6: Is there a breach of independence or impartiality?

** done in contemplation of PF

Independence, impartiality and bias all centre on the notion of fairness in the administrative decision-making process and necessarily involve a consideration of the principles of natural justice. As such, it is important to evaluate these factors when determining whether a decision has been made fairly.

Impartiality connotes absence of bias, actual or perceived. Independence, the ability to decide matters free from inappropriate interference or influence, is a means of achieving impartiality.

Consideration of Independence

·  ATs do not attract constitutional guarantees of independence as the judiciary does (Ocean Port)

o  The judiciary’s independence is meant to protect it from interference from the executive

o  The intention of the legislature dictates the degree of independence required of a particular board/tribunal

o  To ascertain legislature’s intention, must examine the statute as a whole à in particular, the nature, purpose and practice of the AT in question

o  “at pleasure” appointments may prove sufficient depending on the enabling statute

·  Full board meetings are practical means of calling on the cumulative experience of board members and encouraging coherence in decisions that have important policy implications (Consolidated-Bathurst). To ensure independence in FBMs:

o  DMs cannot be forced or induced to adopt positions/consensus when they do not agree

o  Discussions must be limited to law or policy and not factual issues

o  Parties must be given reasonable opportunity to respond to any new ground arising from meeting

o  Consultation processes must be voluntary (requested) and not made compulsory by the institution