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Procedural Fairness

THRESHOLD QUESTION
The Bill of Rights binding ONLY at federal level, rarely used, but
DOES protect property interests (s1(a))
Authorson (rights to disabled veterans benefits) S!! held that
"ill of #ights did not provide absolute rights NO# does it
guarantee $% before a legislative action is ta&en
The !harter' s ( life, liberty, security of the person and the right
not to be deprived thereof e)cept in accordance *ith the principles
of funda+ental ,ustice
Statutes "a# $e general or s%ecific & the# su%ersede !L
e)- .d+inistrative /ribunal .ct ("!), .d+inistrative $rocedures
and 0urisdiction .ct (."), Statutory $o*ers $rocedure .ct (ON)
!L beaten by Statute, Statute beaten by !onstitution1!harter
Nicholson +odern era in $% police constable dis+issed *ithout
reasons or a hearing *hile he *as successful at S!! he did not
get bac& his position (Las&in !0' duty of pf in ad+in decisions)
Martineau prison ad+inistrators did not have to act ,udicially
but there is still a duty of pf (Dic&son' re,ects distinction bet*een
fairness and natural ,ustice) 2ELD' courts should loo& at all the
circu+stances before concluding a breach of duty
Cardinal public authority o*es a duty of pf *hen the ad+in
decision affects the rights' %ri(ileges and interests of an
indi(idual (this *as an e"ergenc# situation so o& that no hearing,
S!! also said that courts should be cautious on i+posing
procedural re34+ents on prison authorities, therefore, courts *ill
sho* deference to decision5+a&er)
Knight ) ste% test *+ nature of the decision ,ad"in' final+ -+
relationshi% $et.een decision/"a0er and indi(idual' )+ affect
on indi(iduals rights (held' he &ne* *hy he *as dis+issed and
*as afforded pf so ter+ination valid)
Dunsmuir if person is both office holder and contractual
e+ployee the contract deter"ines the rights and o$ligations of
the %arties (no* govt e+ployees governed by ordinary
e+ploy+ent la* (Wells)
Legislati(e1Polic# Decisions
- can4t be a +inisterial decisions or e)ercising a purely
legislative function (Martineau)
- legislati(e decision2 Inuit'
a+ loo& to role of !abinet (political and act on o*n +otion)
$+ the nature of the po*er granted affects large 6 of ppl,
broad po*ers to intervene
- Homex' loo0 to the su$stance of the decision if it is
effectively ai+ed at an individual it *ill be ad+in in nature
"Y5L.7 directed at a group of people
- Bezaire' school closures 8 duty of pf specific group and high
i+pact
3o(ern"ent Tendering 8 govern+ent contracts
5 Shell v 9ancouver court revie*ed bc acting outside +unicipal
Interi" Decisions' investigatory or advisory functions 8 no pf
(Guay v a!leur)
5 interi+ but in effect final decision +ay be $% ("e A#el 8 board
reco++endation *as the final decision, although final decision *as
+inister it depended on board reco++endation)
5 report 8 Kriever 8 even though report doesn:t decide, because it
affects reputation there +ay be $%
Office Holders2 PF a%%lies to office holders .hen
*+ no & of e+ploy+ent and office is purely statutory (,udges,
+inisters)
-+ if the ter+s of appoint+ent e)pressly provide for su++ary
dis+issal and the appoint+ent is ;at pleasure4
)+ if ter+s of appoint+ent confer procedural rights
E"ergenc# Decisions Cardinal / the duty o*ed +ight be
+ini+al1less than nor+al if not an e+ergency
5 $%M% v% BC 5 0ehovah4s 7itness parents received +ini+al notice
and ability to challenge +edical evidence *hen the Director sei<ed
their se)tuplets to give the+ blood transfusions- =n this case there
could be no >interi+? decision
Legiti"ate E4%ectations @@ only applies to create procedural
rights and NO/ substantive (Mount &inai, in AB substantive
rights (North and 'ast Devon Health Authority) .LSO !.N/
!ON%L=!/ 7=/2 S/./A/E
both threshold issue and contents issue applies *hen party has'
a+ been consulted before a decision is +ade
$+ a particular procedure *ill be follo*ed or
c+ there *ill be a particular outco+e
T#%es of !onduct that gi(e rise to L5E
a+ e)press representations (Mount &inai)
$+ past practice (+ust be una+biguous and long standing
(C()')
c+ past conduct in dealing *ith the applicant (a!ontaine)
d+ divided authority fro+ S!! *hether signing of treaties gives
rise to L-E
- actual conduct that gives rise to L-E not re3uired (Mount
&inai)
!ONTENT OF PF
@re+e+ber fle)ibility of *hat procedures are re3uired
Ba*er 6 Factors 7PPL8 TO F7!TS
1- nature of the decision +ade1process (ho* close is it to a ,udicial
decision) is it discretionaryC (+ore discretionary 8 higher pf)
seriousness of the decisionC greater the i+pact the +ore rigorous
the procedure
D- nature of the statutory sche+e1ter+s of the statute (right of
appealC ho* final is the decisionC privative clauseC)
E- i+portance of the decision to person affected
F- legiti+ate e)pectations
G- choice of procedures +ade by the agency itself
conclude lo*, +ediu+, high level of $%
Specific #e3uire+ents' NO/=!E %O#H, !ON/EN/, /=H=NI
a+ Notice issues are' +anner of delivering notice, *ho is entitled
to notice, *hen they are entitled to notice, and the content of the
notice
$+ 9a#s of 3i(ing Notice add in the paper, on a board ne)t to
the proposed site, by regular +ail, registered +ail, personally
served subpoena
c+ !ontent2 that a decision *ill be +ade, should have enough
info to deter+ine *hat decision *ill be +ade, if an oral hearing
include the place1ti+e1date, if published enough info to deter+ine
if they are affected
Kriever Commission
5 sent notice to so+e parties indicating there +ight be a finding of
+isconduct
5 court found notice *as ade3uate' 1) not a cri+inal trial so
conse3uences less serious, D) sophisticated parties that &ne* the
issues, E) public in3uiry should have a fact5finding function
@if had found to be inade3uate *ould have been inconvenient to
*itnesses
"e We##
5 need positive evidence that person clai+ing a breach of $% did not
in fact have or understand the notice

$#E52E.#=NI D=S!LOSA#E 5 not necessary to have
Stinchco+be level of disclosure (CIBA+Geigy)
DEL.Y
Blencoe' loo& to factors to deter+ine if delay is e)cessive' a) nature
of the case and its co+ple)ity, b) the purpose and nature of the
proceedings, c) *hether the respondent contributed to or *aived the
delay
Kodellas' found pre,udice because not enough ti+e to preserve
evidence1locate *itnesses so unfair
$ositive .ctionC is there a legal obligation to actC (e)- issue of
licenseC then the re+edy *ill be the ad+in agency ta&e action,
not the issuing of a license)
O#.L 2E.#=NIS no %resu"%tion of oral hearing fro"
Ba0er
Khan' oral hearing necessary *hen credibility is an issue
5 should be open to the public unless there are co+pelling reasons
not to (Char*aoui) so privacy interests, public safety,
co++ercially sensitive info, high stig+a situations
Nature of Issues & is it co"%le42 ca%acit#2 i"%act2
D=S!LOSA#E O% H./E#=.L %O# 2E.#=NI
5 parties need to &no* case to be +et (May v ,erndale)
5 e)ceptions' national security, security of a person, sensitive info
(e)- child protection)
O%%=!=.L NO/=!E 8 e)tent and +anner to *hich agency +ay use
+aterial not in evidence if ad+inistrator is relying on so+ething
+ust tell other party so they can counter it
#E$#ESEN/./=ON
5 right to a counsel *henever there is a right to a hearing, but
tribunals +ay e)clude la*yers
5 factors a+ i"%ortance1seriousness1co"%le4it# of the "atters
at issue ( co+ple)ity 8 if re3uires stat interpretation #e Hen4s
!lothing), $+ i"%act' c+ ca%acit# of indi(idual to re%resent self
("e Men-s Clothing.
5 )arrish' refusal to testify *ithout a la*yer because of
reputation, livelihood, etc court found he should have counsel
(Ontario S$.. s 1J)
5 Iovt %unded !ounselC only *hen you can raise a s ( argu+ent
for state5funded la*yer
.DH=SS="=L=/Y O% E9=DEN!E
5 nor+al rules of evidence not applicable
5 "A/ findings of inad+issibility1reliance on unreliable evidence
+ay lead to a breach of $%
!#OSS EK.H=N./=ON
5 right to cross *itnesses *ho testify orally1put for*ard evidence in
*riting
5 pros' challenge evidence, both factual and e)pert
5 cons' re3uires personal attendance, inti+idating
5 "e County o! &trathcona' the opportunity to be heard also +eans
+ust be able to test other side if you are going to rely on e)pert
should be able to cross (so less *eight *ill be given on that e)pert
evidence)
5 "e B and Catholic Children-s Aid' cf- &trathcona given the
seriousness (child se)ual abuse) cross *as necessary for $%
(seriousness of decision to party affected)
#E.SONS
5 it is hard to challenge a decision if you don:t &no* the reasons,
re3uiring *ritten reasons +ay provide a better decision, and the
inherent right of so+eone to &no* the basis for a decision
5 #e3uired' 5 Ba*er 8 reasons H.Y be re3uired at !L, depending
on the G factors ( loo& at 5 if there is a statutory right of appeal, if
necessary for ,udicial revie*)
5 Reasons "ust $e 7DEQU7TE
Institutional Decision :a0ing
Delegation of actual decision "a0ing authorit# is %rohi$ited
rule ; .hen legislature gi(es decision "a0ing %o.er to a
%erson1entit# it e4%ects the %erson1entit# to "a0e the decision
E4ce%tion ; authorit# to delegate "a# $e %ro(ided $# statute
1) delegation re3uires an e)press act
D) delegated po*er +ust be li+ited
E) delegator +ust retain ulti+ate control over the delegate
F) delegate +ust act *ithin li+its of their delegated po*er
*hat can4t be delegated 8 appoint+ent to an office, the ability to
+a&e an appoint+ent, ,udicial1disciplinary po*er
courts can deny there *as an inference to allo* delegation *hen
the decision is significant to the person1entity affected ($ine v
National Doc*)
H=NS/E#=.L $O7E#S (Carltona Doctrine)
5 no e)press act is necessary to allo* delegation to officials
5 the nature of +inister4s po*ers 8 i+possible to carry out all tas&s
5 official is NO/ a delegate their actions presu+ed to be action of
Hinister
5 EK!E$/=ON' !ourts can say the po*er +ust be e)ercised by the
Hinister personally
Delegation of Duty to 2ear
5 *here panel has decision5+a&ing function but +a&es decision
based on evidence heard by only part of the panel
5 /e!!s board doesn:t need to hear all evidence "A/ +ust be fully
infor+ed to +a&e a decision
$roble+ of !onsistency (consistent decisionspredictability
accountability rule of la*)
5 ad+in agencies do not have sa+e rules as courts (re- precedents,
reasons, appeals, legal training)
Ho. is !onsistenc# 7chie(ed2
1) I#OA$ O# %ALL "O.#D HEE/=NIS
5 Int-l Wood0or*ers' under state po*er vest in the panel not board
5 1rem#lay' full +eeting had to be called, there *as a pressure to
co+ply *ith vie*s of +a,ority !.N/ 2.9E =H$#O$E#
=N%LAEN!E
5 'llis+Don' less info about the process than in /re+blay didn:t
have testi+ony of *hat occurred in +eeting ct *ouldn:t allo*
panel +e+bers to be 3uestions about *hat happened in +eeting
2eld' can not breach $% if it is an apprehended breach
5 Full $oard "eetings .ill not $e i"%ro%er if consultation
initiated $# the %anel and not i"%osed on the $oard' facts not
de$ated and discussion li"ited to issues of la. and "i4ed la.
and fact' decision/"a0er is free to "a0e u% "ind
D) LE.D !.SES
5 Geza' can use leading cases, but decision here *as overruled bc of
bias and i+proper influence
E) IA=DEL=NES
5 *ritten directions outlining ho* specific types of cases should be
decided or ho* agency officials should carry out their
responsibilities
5 Bell Canada' guidelines can be challenged if they are issued in
bad faith or undue influence in the process
5 1amotharem2 guidelines can not be +andatory1eli+inate
discretion
F) !ONSAL/./=ON 7=/2 S/.%%1.IEN!Y
BI7S
TEST ; not the actual state of "ind $ut .hether there is the
a%%earance of $ias (Committee !or /ustice and i#erty v
National 'nergy Board)
*5 :aterial Interest ('nergy )ro#e) +ust be personal financial
interest (indirect financial interest +ay be enough if substantial and
connection is clear)
-5 Prior 7ssociation .ith a Part# (Mar3ues v Dylex) personal
fa+ily1friends, if a for+er connection as&' ho* close *as the
connectionC ho* +uch ti+e has passedC
)5 In(ol(e"ent .ith In(estigati(e or !harging decision ()aine v
( o! 1 found that o& that sa+e vie*s used re- tenure) it is
hu+an nature to validate earlier decision, general rule 8 is that
+e+ber *hose decision being appealed cannot sit on appeal
<5 Pre/=udg"ent Ba*er Loren<o based vie*s on the 6 of
children she had, so he pre5,udged her *ithout loo&ing at other
factors (note' 4ld &t Boni!ace "esidents Assn pre,udg+ent
inherent in role of councillor councillor has po*er to persuade)
65 Inde%endence' +ust be i+partial to issues and parties in a case
(,udicial independence 8 " v $alente re3uires ( security of tenure,
financial security, institutional independence)
L- Statutory .uthorisation of "ias
"=.S !.SE 8 Char*auoi
1) bias on part of govt 8 statute provides for an active, non5
deferential role for ,udges
D) investigator 8 if ,udge is acting as an investigator then the
principles of funda+ental ,ustice are breached, so long as the
funda+ental role is still ad,udicative it is o& (as *as the case)
E) as advocate for na+ed person 8 statute re3uires ,udge to carry
out revie* in an i+partial fashion
Su$stanti(e Re(ie.
7S> 9hat is the standard of re(ie.2 Ho. "uch deference
should courts gi(e to decisions of ad"inistrati(e agencies2
E S/E$S
1- legislative standardC
D- .nalogous !aseC
E- .pply Duns+uir Standard of #evie* 8 F %actors fro+
$ushpanthan
Dunsmuir
- Duns+uir *as !ler& of the court of the Ne* "runs*ic& court
of Mueens "ench-
- 2e *as e+ployed by the Depart+ent of 0ustice >at pleasure?-
2is office *as hybrid in character he *as both an e+ployee
and an office holder-
- 2e *as disciplined three ti+es and sent a for+al letter
advising that he ris&ed dis+issal if he did not i+prove his ,ob
perfor+ance-
- 2e *as ter+inated *ithout cause, and given four +onths pay
in lieu of notice
- decision to dis+iss hi+ *as void bc of breach of $%
- D got his ,ob bac&
- TEST ; Standard of Re(ie. 7nal#sis & !orrectness and
Reasona$leness
- Deference' reasona$leness si"%liciter standard (under the
correctness standard there is no deference)
- before there *ere E correctness, reasonableness and patently
unreasonable (this one *as unclear5 *as it the search for legal
errorC or fle)ibility into *hether there *as a rational basis for
the decisionC it overlapped *ith the other D and *as ,ust too
confusing to apply)
!orrectness Standard
- the !ourt *ill not sho* deference
- the !ourt *ill underta&e its o*n analysis of the 3uestion and
decide *hether it agrees or not *ith decision +a&er
- if the !ourt disagrees it *ill substitute its o*n vie* and
provide the correct ans*er
#easonableness Si+pliciter Standard
- the !ourt in3uires into the 3ualities that +a&e a decision
reasonable'
o ,ustification, transparency, intelligibility
o does the decision fall *ithin a range of
possible, acceptable outco+es
o re3uires respect for the legislative choices to
leave so+e +atters in the hands of
ad+inistrative decision +a&ers
o does not indicate a decrease in the level of
deference
7hat Standard .ppliesC < Factors ()ush5anathan' )for
*hether or not deference is o*ed (not all *ill necessarily apply)
*5 %resence or a$sence of a %ri(ati(e clause
- this protects the decision of the ad+in agency fro+ revie* by
the courts eg- ;the decision of the tribunal is final4
- $rivative !L.ASE 8 sho* deference
-5 the %ur%ose of the tri$unal
- purpose of the act as a *hole *hat does the act re3uireC
)5 the nature of the ?uestion at issue
- is it a 3uestion of fact, +i)ed fact and la* or pure issue of
la*C
<5 the e4%ertise of the tri$unal
- )ush5anathan' the court assesses the e)pertise of the tribunal
and then considers the court4s o*n e)pertise relative to the
tribunal, then as&s ho* specific the issue is before the
decision5+a&er in relation to their e)pertise (e)- labour la*,
nuclear plants, etc)
Factors Indicating !orrectness
- ?uestion of la. that are of cental i+portance to the legal
syste+ as a *hole
- constitutional ?uestions regarding division of po*er
- 3uestions of ,urisdictional lines bet*een co+peting tribunals
- true 3uestions of ,urisdiction 8 is it ultra viresC
Dunsmuir revie*ed on standard of reasonableness
KH4&A (street racer case)
- case heard by the =++igration .ppeal Division of the
=++igration and #efugee "oard
- applied L factors turned on the seriousness of the offence and
the possibility of rehabilitation
- B testified before the =.D and they said he didn:t sho* enough
re+orse
- S!! held' found the standard *as reasonableness and the
decision *as reasonable (7S> .ithin the range of %ossi$le
reasona$le outco"es2+
- 7%%lied < Factors' there *as a privative clause indicating
deference, the purpose of the =.D decisions are revie*able
only if the %ed !ourt grants leave to co++ence ,udicial
revie*, the 3uestion 8 =.D had po*er to grant e)ception
relief, the e)pertise of the =.D
- 2ELD' decision *as reasonable not to grant hi+ an e)ception
to the re+oval order
Association des Courtiers et Agents v )ro5rio Direct Inc
- a decision re3uiring +e+bers to pay fees once a house *as
sold
- 3uestion *as *hether rule could +e +odified under contract
- standard .as reasona$leness the co++ittee *as
interpreting its statute decision upheld
a*e
- ,udge +a&es an e)tradition order, but the Hinister +a&es the
final decision to e)tradite
- Hinister +ust have special &no*ledge of foreign affairs
- so long as +inister applied the correct legal test assessed on
a standard of reasona$leness
- held' decision *as *ithin the range of possible reasonable
outco+es
Northro5 Grumman 4verseas &ervices Cor5
- issue about *hether Northrop had standing before the
!anadian =nternational /rade /ribunal to co+plain about an
unfair bidding process
- S!! held' loo&ed to previous case la* to deter+ine that the
!=//4s decision *as re(ie.a$le on standard of correctness
Hinority in Dunsmuir
%er Binnie =
- agrees that there should be D levels of deference
- says there should be a correctness standard on one side and
for reasonableness *hat is reasonable *ill vary *ith the
circu+stances
%er Descha"%s !harron and Rothstein ==
- ,udicial revie* of ad+in decisions should be +ore li&e
appellate revie*
- Ander their proposed analysis'
- .ny revie* starts *ith the identification of the 3uestion at
issue as 3uestions of la*, 3uestions of fact or 3uestions of
+i)ed fact and la*- Muestions of fact *ill al*ays re3uire
deference-
- =f the 3uestion is one of la*'
- =f there is a privative clause, deference is o*ed to the
ad+inistrative body that interprets the legal rules it *as
created to interpret and apply-
- =f the body oversteps its delegated po*ers, or if it is as&ed to
interpret la*s in respect of *hich it does not have e)pertise
deference is not o*ed-
- =f there is a statutory right of appeal, deference is not o*ed-
- %inally, *hen considering a 3uestion of +i)ed fact and la*, a
revie*ing court should sho* an ad,udicator the sa+e
deference as an appeal court *ould sho* a lo*er court-
So are there still degrees of deferenceC
- single standard
Legislati(e Standards
- loo& to *hat the legislative intention *as does it s%ecif#
that the standard should $e correctness1reasona$leness
- loo& to specific and general statutes
- *hat e)tent *ill the courts consider the !L *hen applying
statutory standardsC
" v 40en
- O*en found not cri+inally responsible because of +ental
disorder, he *as released bac& into the co++unity
- revie* board did not grant hi+ an absolute discharge
- !ri+inal !ode contains a strong and %recise %ri(ati(e
clause indicating that the court could only interfere *hen'
o decision is unreasonable or cannot be supported by
the evidence
o the decision is based on a *rong decision on a
3uestion of la*
o there *as a +iscarriage of ,ustice
- Held the courts should a%%l# the statutor# standard and
the !L anal#sis
%ederal !ourt .ct and Substantive #evie*
- s 1N-1
(F) /he %ederal !ourt +ay grant relief under subsection (E) if it is
satisfied that the federal board, co++ission or other tribunal
(a) acted *ithout ,urisdiction, acted beyond its ,urisdiction or
refused to e)ercise its ,urisdictionO
(b) failed to observe a principle of natural ,ustice, procedural
fairness or other procedure that it *as re3uired by la* to observeO
(c) erred in la* in +a&ing a decision or an order, *hether or not
the error appears on the face of the recordO
(d) based its decision or order on an erroneous finding of fact that
it +ade in a perverse or capricious +anner or *ithout regard for the
+aterial before itO
(e) acted, or failed to act, by reason of fraud or per,ured evidenceO
or
(f) acted in any other *ay that *as contrary to la*-
KH4&A
- "innie 0 *rote for the +a,ority
- ac&no*ledges that the legislature has the po*er to legislate
standards of revie*, provided its done *ith clear and e)plicit
language (40en)
- language :UST $e una"$iguous
- did the %ederal !ourt .ct intend to create ne* standards of
,udicial revie*C no standard of revie* specified
- there is a discretion to grant relief, but this +ust be done in
accordance *ith the Duns+uir principles
- %ish 0 agreed *ith the application but *ould not have
deported Khosa
- #othstein 0 disagreed *ith legislative standards and *ould
have said legislation had a standard of revie*
BC Administrative 1ri#unals Act
- applies to tribunals to the e)tent their enacting statutes
incorporates the relevant provisions of the ./.
- %reser(es the standard of %atent unreasona$leness s 6@ (for
privative clause)
(1) If the tri$unalAs ena$ling 7ct contains a %ri(ati(e clause,
relative to the courts the tribunal +ust be considered to be an e)pert
tribunal in relation to all +atters over *hich it has e)clusive
,urisdiction-
(D) =n a ,udicial revie* proceeding relating to e)pert tribunals under
subsection (1)
(a) a finding of fact or la* or an e)ercise of discretion by the
tribunal in respect of a +atter over *hich it has e)clusive
,urisdiction under a privative clause +ust not be interfered *ith
unless it is %atentl# unreasona$le'
(b) 3uestions about the application of co++on la* rules of natural
,ustice and procedural fairness +ust be decided having regard to
*hether, in all of the circu+stances, the tribunal acted fairl#, and
(c) for all +atters other than those identified in paragraphs (a) and
(b), the standard of revie* to be applied to the tribunal:s decision is
correctness-
(E) %or the purposes of subsection (D) (a), a discretionary decision
is patently unreasonable if the discretion
(a) is e)ercised arbitrarily or in bad faith,
(b) is e)ercised for an i+proper purpose,
(c) is based entirely or predo+inantly on irrelevant factors, or
(d) fails to ta&e statutory re3uire+ents into account-
- .hen no %ri(ati(e clause s 6B
(1) =n a ,udicial revie* proceeding, the standard of revie* to be
applied to a decision of the tribunal is correctness for all 3uestions
e)cept those respecting the e)ercise of discretion, findings of fact
and the application of the co++on la* rules of natural ,ustice and
procedural fairness-
(D) . court +ust 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 other*ise unreasona$le-
(E) . court +ust not set aside a discretionary decision of the
tribunal unless it is %atentl# unreasona$le-
(F) %or the purposes of subsection (E), a discretionary decision is
patently unreasonable if the discretion
(a) is e)ercised arbitrarily or in bad faith,
(b) is e)ercised for an i+proper purpose,
(c) is based entirely or predo+inantly on irrelevant factors, or
(d) fails to ta&e statutory re3uire+ents into account-
(G) Muestions about the application of co++on la* rules of natural
,ustice and procedural fairness +ust be decided having regard to
*hether, in all of the circu+stances, the tribunal acted fairl#-
Manz v &undhur
- legislating standards of revie* does not interfere *ith the
constitutional po*ers of the courts to carry out ,udicial revie*
(per Crevier)
- the ./. does not define patent unreasonableness so loo& to
!L (this case decided after Dunsmuir but before Khosa
*hen "innie 0 officially abolished patently unreasonable test)
KH4&A on the A1A
- patent unreasonableness continues to apply in "!
- the e)pression patent unreasonableness *as clearly intended to
refer to !L usage so loo& to !L for ho* to interpret it
- but ho* does it change *-r-t !LC
$ictoria 1imes Colonist
- decided after Khosa
- does not set out an alternative test
- %atent unreasona$leness inter%reted to "ean a high le(el
of deference
9hat is Patent Unreasona$leness at !L2
- $re5Dunsmuir 8 the defect should be apparent on the face of
the ,udge+ent and the revie*ing court is not to re*eigh
considerations or +easure the decisions against its o*n vie*
of *hat the correct decision is /2E#E%O#E'
- the court should onl# loo0 at .hether there is a rational
$asis for the tri$unalCs decision ,co"es fro" C()'+ ; high
le(el of deference
Statutor# 7%%eals
- *hat is the standard of revie* *hen the court is acting
pursuant to a statutory po*er of appeal rather than ,udicial
revie*C
- *here there is no standard provided by statute & a right of
a%%eal is a factor indicating less or no deference
)ezim
- legislature cannot e)clude ,udicial revie* co+pletely
Seg"entation and Standards of Re(ie.
- seg+entation 8 *here a single decision is challenged on
+ultiple grounds
- co""onl# arises in Durisdictional issues' constitutional
?uestions ,$oth re(ie.ed on standard of correctness+
evis 6City.
- police officer pleaded guilty to several cri+inal offences
- after a disciplinary investigation his e+ploy+ent ter+inated
- there *ere D applicable statutes $olice .ct and !ities and
/o*ns .ct
- arbitrator found that $olice .ct displaced !ities and /o*ns act
- *hat standard of revie*C
- S!! +a,ority 8 only use +ultiple standards of revie* *here
there are clear distinctions bet*een the 3uestions and *e
should not use seg+entation to increase court4 security
- held - se%arate ?uestions 8 relationship bet*een the D
statutes (revie*able on correctness) and the interpretation and
application of the $olice .ct (+i)ed la* and fact revie*able
on reasonableness)
- .bella 0 8 said should have applied sa+e standard of revie*
of ad+inistrative decision +a&ing 5 seg+entation should only
occur *here the issue is ;genuinely e)ternal4 and can be easily
differentiated fro+ other issues in the case
Council o! Canadians 0ith Disa#ilities v $ia "ail
- .bella *rote the +a,ority (day after evis handed do*n)
- !anadian /ransportation .gency did not have authority to
consider the !ouncil4s co+plaint and the .gency had *rongly
deter+ined that there *as an undue obstacle in the rail cars
- this *as before Dunsmuir and so found that patent
unreasonableness should be single standard
- said seg+entation not appropriate should not separate
,urisdictional and preli+inary 3uestions
- Descha+ps and #othstein 00 (dissent ) seg+entation *as
appropriate and the standard of correctness should apply to
both 3uestions (they *ere 3uestions of la*, no privative
clause, and a right of appeal, the agency did not have greater
e)pertise than the court)
Dunsmuir on Seg+entation
- +a,ority did not e)pressly address the issue
- Binnie = recognised the practice of seg+entation and the need
to distinguish bet*een constitutional issues and application of
la* to facts on e)tradition (a*e) but did NO/ suggest *hat
test for seg+entation *ould be appropriate
- $ost Dunsmuir la* $ia "ail and evis *ould both be
applicable difficult to dra* the line bet*een appropriate
seg+entation and cases *here a single standard should be
applied
- 7s0 is Seg"entation a%%ro%riate2 and ho. .ould the
results $e different2 ,*5 seg"entation a%%roach' -5 unifor"
a%%roach+
Discretion
- "a# $e e4%ress or i"%lied & loo0 to the range of o%tions
that a decision "a0er can chose fro"
- also loo0 to underl#ing %rinci%les of the statute1%ur%oses
- types of discretion'
a- cases .here no rule is set (ability to cancel a li3uor
licence at discretion ("oncarelli.
b- cases .here $road rules "ust $e a%%lied to a .ide
(ariet# of situations (ie- deciding if a prosecution is in
the public interest)
c- cases .here large E of factors "ust $e $alanced to
reach a decision (ie- +unicipal councillors deciding
*hether to allo* re<oning of a property)
d- cases .here unforeseen1unusual circu"stances can
e"erge (ie- special levy to get youths transported in
custody ho+e after their release)
e- e4ce%tions fro" rules .here a strict a%%lication of the
rule could ha(e undesira$le results (ie- Khosa7Ba*er)
=+proper Ases of Discretion
- for+s of abuse' *+ $ad faith' -+ i"%ro%er considerations or
)+ i"%ro%er %ur%oses
- failure to ta&e into account irrele(ant considerations1failing
to ta0e into account rele(ant considerations ("oncarelli'
described as bad faith bc of the use of discretionary po*er to
punish # or the i+proper consideration (being #4s support of
0ehovah4s *itnesses)
9hat is Pro%er1I"%ro%er !onsideration2
- "ust "a0e decision in accordance .ith the !harter
- can also ta&e into account international treaties1international
hu+an rights nor+s (Ba*er) "A/ S!! said in &uresh that
unratified treaties should not be considered
StandardC in Dunsmuir it *as deter+ined that a standard of
reasona$leness .ill usuall# a%%l#
.SB' does the decision fall *ithin a range of possible outco+esC
Discretion under the ./. loo& to s GN and s GP
"e &heehan
- co+pensation for fight *ith other in+ates
- "oard had discretion to deter+ine co+pensation and denied
any co+pensation
- ! of . it *as up to the "oard to deter+ine *hat is relevant
and because it had a broad discretion to see *hat1if
co+pensation should be provided
&hell Canada )roducts td
- city council of van passed resolutions against doing business
*ith Shell bc of apartheid
- found that the +unicipality only e+po*ered to act for
+unicipal purposes
Ba*er
- "ore discretion ; "ore the courts should sho. deference
&uresh 6national security threat.
- Hinister could not e)ercise discretion in a +anner that
violated the !harter
C()'
- Hinister to choose an arbitrator fro+ a list of arbitrators that
*ere acceptable to the parties (for labour disputes in hospitals
and nursing ho+es)
- Hinister appointed several retired ,udges *ho *ere not on the
approved list
- appointing persons *ithout e)pertise and credibility as
arbitrators *as a failure to ta0e into account rele(ant
considerations
%ettering
a. a decision5+a&er that has been given discretion cannot ;fetter4
that discretion (ie- it cannot li"it or re"o(e its O9N
discretion) discretion can only be li+ited by the legislature
that conferred that po*er
b- this is an issue of $% if the tribunal has fettered its discretion
a court *ill intervene and there is NO roo+ for deference
c- *hen is a ;guideline4 an i+proper fetter of discretion
(1hamotharem)
o loo& to language of guidelines are they
+andatory or suggestiveC
o does it allo* for e)ceptionsC
o is the guideline applied as a +andatory
directiveC
!onstitution
*5 Legislation "a# $e (alid' $ut the %articular decision "a#
$e unconstitutional
-5 Legislation "a# $e Unconstitutional
5 if there rights have been reached it *ill depend on a charter
analysis under s 1 and Oa&es /est
&laight
5 challenge to freedo+ of e)pressions s -,$+
5 no decision5+a&er can have a discretionary po*er that allo*s hi+
to +a&e decisions contrary to the !harter
'ldridge
5 challenge that failure to fund sign language interpreters *as
contrary to s *6
5legislation itself did not breach the !harter but the decision *as
a breach
Multani ; decision $# agenc# !harter $reach !ourt
decides .hether it is a $reach
- school4s refusal to allo* H to carry a &irpan
- S!! +a,ority' *as against freedo+ of religion the central
issue *as not the ad+inistrative decision (of school board) but
a !harter issue
- "oard had ,urisdiction in ad+in la* to prohibit *eapons, but
the issue *as *hether this violated H4s !harter rights
- found .as a $reach and anal#sed $# s * and Oa0es
Note'
- *here !harter values are a factor (Cham#erlain) the
!harter values should be e)a+ined in ad+inistrative process
- DO NO/ apply Multani
)oulin
- visually i+paired in+ate *ho *as denied a personal scanner
- breach of $% (lac& of disclosure) and !harter (e3uality)
- !ourt' said not necessary to perfor+ a standard of revie*
analysis Dust loo0 at !harter argu"ents under s * and
Oa0es
- ,note if there .as a se%arate issue it could ha(e $een
anal#sed under standard of re(ie.+
Whatcott
- application of Multani freedo+ of e)pression (anti5aborition
activist)
- court found that as decision violated the !harter (s Db and
could not be saved by s 1) there *as no need to 3uestion
ad+inistrative la* principles
a*e
- e)tradition of a person to AS for drug traffic&ing
- the correct legal test re3uired a standard of reasona$leness
the decision found to be *ithin possible reasonable outco+es
- did not consider Hultani said that e)tradition can violate
!harter rights but e)tradition saved by s 1 it did not apply to
this case, but rather a%%lied ad"inistrati(e la. %rinci%les

Martin7Con0ay ; %erson alleges !harter $reach goes to
agenc# goes to !ourt ,standard of correctness+
- suffered *or&5related in,uries and *ere disabled *ith chronic
pain
- "oard said chronic pain e)cluded fro+ *or&ers co+p
- *or&ers appealed to 7or&ers !o+p .ppeals /ribunal saying
that it infringed their rights under *6,*+ of !harter ,e?ualit#+
- .ppeals /ribunal said it did have ,urisdiction to apply the
!harter and said it did violate s 1G and could not be saved by s
1
- S!! said yes did violate s 1G and couldn:t be saved by 1 and
yes the /ribunal had the authority to rule on the constitutional
validity of the legislation (this *as in the specific legislation)
- the la. .ill $e of no force or effect ,s 6-+ (Martin2 can NOT
stri0e do.n legislation' onl# in(alid .5r5t case $efore the
tri$unal+
- the /ribunal has a DA/Y to decide constitutional 3uestions
9hich Tri$unals !an Rule on the Falidit# of Legislation2
- can be e)plicit or i+plied
- e4%licit ; ter"s of the statutor# grant of authorit#
- i"%lied ; loo0 at the statute as a .hole relevant factors'
o the statutor# "andate
o the interaction of the tri$unal .ith other
ele"ents of the ad"in s#ste"
o is the tri$unal adDudicati(e in nature
o %ractical considerations ; .hat is the
tri$unals ca%acit# to consider ?uestions of
la.2
- all you need to find is general ,urisdiction to decide 3uestions
of la* that are relevant to the provisions being challenged and
this is presu+ed to include the constitutionality of those
provisions UNLESS
o %resu"%tion can $e re$utted' statute has e)pressly said
that there is no authority to consider the !harter
7hat if the /ribunal does NO/ have ,urisdictionC
- can refer a 3uestion to the courts or allo* an application by a
party to delay decision pending resolution of the !harter issue
- this po*er is li+ited in "! by the ./.
)aul v BC 6,orest A55eals Commission.
- 3uestion 8 did the %-.-! have ,urisdiction to decide *hether
$aul had an aboriginal right to cut ti+berC
- S!! held found that the !ode itself *as constitutional
- !o++ission could decide issues of la* *hich included
aboriginal rights
- the decision *as therefore revie*able on the correctness
standard
s -< of the !harter can only be provided by a court of
Gco"%etent DurisdictionC
- DF(1) 8 to grant such relief as a%%ro%riate and Dust in the
circu"stance (declaration of rights, court orders1in,unctions,
da+ages)
- DF(D) 8 evidence obtained in a +anner that violates the
!harter can be e)cluded
!an a Tri$unal $e a !ourt of co"%etent Durisdiction2
Mills' E step test' the parties, the sub,ect +atter of the clai+ and the
re+edy sought
We#er held that if the tribunal has a po*er to +a&e an order, it
can +a&e that order as a re+edy for a !harter breach
Con0ay (leading case on application of !harter re+edies)
- found N!#HD detained in a +ental health facility
- alleged nu+erous !harter breaches relating to circu+stances
of his incarceration (near a construction site, failure to
properly counsel hi+)
- sought re+edy under DF(1)' an absolute discharge or orders
including the facility provide hi+ *ith alternative treat+ent
- "oard hearing' found that he *as an unsuitable candidate for
an absolute discharge .ND said it did not have ,urisdiction
to +a&e a deter+ination on !harter argu+ents
- S!!
o held that the Board did ha(e Durisdiction to
consider charter argu"ents
o Mills test "ost i"%ortant ; did the legislation
intend to grant the tri$unal the %o.er to a.ard s
-< re"edies2
anal#sis the sa"e under -< as under 6- ; ?uestion is .hether
the tri$unal has the Durisdiction to grant the %articular re"ed#
sought .hich is an e4ercise in statutor#
inter%retation1legislati(e intent
F7!TORS in Con0ay
5 found that the "oard had the %o.er to decide ?uestions of la.
and therefore *as a court of co+petent ,urisdiction' (3uasi5,udicial
body, authorised to decide 3uestions of la*, right of appeal, no
e)press re+oval of po*er to +a&e constitutional decision)
s DF(D) Mooring
- challenged ad"issi$ilit# of e(idence before the $arole "oard
- S!! held' not a co+petent ,urisdiction for the purposes of
e)cluding evidence it *as in3uisitorial rather than 3uasi5
,udicial, the la.s of e(idence do not a%%l#HH and the
legislation did not gi(e the %o.er to e4clude e(idence
- therefore & cant e4clude e(idence $ut can see ho. the
ad"issi$ilit# .ould affect PF and s I
Re"edies
- bringing an application for ,udicial revie* 8 it depends on the
,urisdiction governed by statute or the applicable rules of
court
- e)- under Federal !ourt 7ct an app for ,udicial revie* +ay
be +ade by the .5I or any person directly affected (s 1N-1(E)
sets out available orders)
Stay of $roceedings
- co++encing a ,udicial revie* app does not +ean that the
order in 3uestion is stayed $ut the court has discretion to
sta# the %roceedings ) re?uire"ents
*+ %ri"a facie case or a serious ?uestion to $e tried
-+ irre%ara$le har" (har+ that cannot be or difficult to be
co+pensated in da+ages)
)+ $alance of con(enience (*hich side *ill suffer greater har+ is
stay is allo*ed1refused) *here the action of a public authority is
in issue the public interest *ill be considered (Manito#a v
Metro5olitan &tores)
5 sa+e test is for interlocutory in,unction
Brotherhood v Canadian )aci!ic td
- a court has discretionary po*er to order interlocutory
in,unctions, even *here the court does not other*ise have
,urisdiction over the +atter
Standing
- *ho can bring an app for ,udicial revie* of an ad+inistrative
actionC
o interested %ersons (includes original parties before
the tribunal and persons directly affected by the
decision8 private rights are interfered *ith, *ho
suffer special da+age or e)ceptional pre,udice +ust
be a sufficient ne)us bet*een the in,ury and the
action being challenged)
o %arties acting in the %u$lic interest
o the 7/3 (on behalf of public interest)
o the agenc# .hose decision is in issue
,inlay
- recipient of social services benefits
- under !anada .ssistance $lan Hanitoba did not have to
co+ply *ith sa+e re3uire+ents as other provinces *hich
*ould have increased the benefits payable to %
- S!!' % had a personal interest in the legislation but the
ne)us *as too re+ote for standing on ground of personal
interest
- .5r5t %u$lic interest argu"ent & the criteria are
a+ Dusticia$ilit# ,the issue is a proper +atter to be deter+ined by
the courts as opposed to policy issues best handled by
e)ec1legislature
$+ serious issue raised
c+ individual has genuine interest in the issue (not a +ere busy
body)
d+ no other reasona$le or effecti(e "anner in *hich the issue
+ay be brought before the court
- % 3ualified for standing under the above
Amnesty v Canada 6Canadian ,orces.
- did .+nesty =nternational have public interest standing *-r-t
+istreat+ent and torture of prisoners
- found that satisfied above test but ulti+ately unsuccessful
bc the !ourt held the !harter does not apply to detainees
Standing of .5I
- can see& revie* as a +atter of public interest
.gency
- generally the agency cannot defend its decision (be a party to
the challenge on ,udicial revie*)
- e)ceptions' *here the scope of the tribunal4s ,urisdiction is at
issue, *here the tribunal4s involve+ent is necessary to
provide bac&ground infor+ation
Children-s a0yer !or 4ntario v Goodis
- 0ane Doe re3uested filed but the !hildren4s La*yer held
so+e bac& clai+ing privilege
- Doe appealed this decision to Ioodis, the $rivacy
!o++issioner- /he !o++issioner ordered disclosure of
al+ost all the pages-
- /he !hildren4s La*yer applied for ,udicial revie* of the
!o++issioner4s decision-
- /he !o++issioner filed a factu+ in the ,udicial revie*
proceeding atte+pting to ,ustify the decision on additional
grounds fro+ those set out in the !o++issioner4s original
decision-
- found that it *ill be necessary to consider' *hether the
tribunals sub+issions are necessary for the +atter to be fully
argued
- the tribunal should +aintain the appearance of neutrality
- nature of the 3uestion is there an allegation that the
institutional decision +a&ing process is unfairC
#e+edies
Prerogati(e 9rits
*+ certiorari 8 3uash the decision 8 co""on re"ed# for PF
- +atter is often re+itted for reconsideration this +ay be done
*ith directions (Ba*er the direction that a different officer
consider the +atter)
-+ %rohi$ition
- an order preventing the ad+in agency fro+ ta&ing action or
+a&ing a decisio
)+ "anda"us
- co+pelling the agency to perfor+ an action
<+ ha$eas cor%us
- *hen a person is incarcerated the court can re3uire that the
state bring the person before the+ and ,ustify the
incarceration
6+ ?uo .arranto
- used to in3uire into the authority to ,ustify public action
Legislation
- legislation can have si+plified re+edies and procedures for
see&ing the+ but +ostly based on the *rits e)- federal
court can issue *rits (federal court act s 1N(1) and +a&e a
variety of orders)
Declarations
- the court +a&es a pronounce+ent on +atters of la* defining
the rights and obligations of the parties
- this is often put *ith an other re+edy
:onetar#
- da+ages can be a*arded under s -<,*+HHH
- test for .hen da"ages should $e a.arded $ancouver
6City. v Ward
a5 charter $reach
$5 da"ages are Dust and a%%ro%riate & serve functional
purpose of co+pensation
c5 no reasons .h# da"ages should not $e a.arded (ie- no
alternative re+edies)
d5 ?uantu" of loss is esta$lished $# e(idence
- for ad+in decisions 8 da+ages can be a*arded if there is a
legal duty to +a&e pay+ent (co+pelled by +anda+us) or if
the dis+issal is 3uashed the office holder +ay be declared
entitled to pay
!hoice of Re"ed# and Discretion
- even if a party is successful there +ay be no re+edy (Homex)
- *hen breach of $% decision *ill be 3uashed
Discretion of the !ourt to Refuse Relief & .ill decline relief
.hen
- the applicant has
o NO/ e)hausted other routes of appeal
o delayed bringing the application
o co++itted +isconduct
o *aived rights
- the application is
o a collateral attac& on an order
o is pre+ature
7lternati(e Routes of 7%%eal (4*0uo#i v ester B )earson
&chool Board+
- a court +ay refuse to hear an app if the applicant has not used
all available routes *ithin the ad+in syste+
- so if there is a statutory right of appeal that the applicant has
not used
- or if ,udicial revie* +ade concurrent *ith an appeal
- ,udicial revie* is the ;re+edy of last resort4 (Canada v
Addison)
- if the alternative re+edy *ill not be ;ti+ely and effective4 85
the can have ,udicial revie* at sa+e ti+e (Gates+
Pre"aturit#
- can not bring app for revie* until the final decision has been
+ade (Air Canada v orenz+
Rule against !ollateral 7ttac0
- decision should not be challenged in separate proceedings if it
could be challenged directly (Wilson v the 8ueen)
:ootness
- if the dispute has no practical significance for the applicant
(Boro0s*i)
- e)- May 8 E of F applicants *ere no longer in +ediu+ security
by the ti+e the +atter reached the S!!
- e)- Goodis 0ane Doe stopped participating in proceedings by
the ti+e the +atter reached the ! of .
- $%M v BC the blood transfusions had already been given to
se)tuplets and the children had returned to their parents
custody
Dela#
- if the li+itation period is over this +ay be a bar to start
proceedings
- even if no li+itation period if too +uch delay the court +ay
decline to grant relief
:isconduct
- Homex 2o+e) see&ing to avoid the conse3uences of an
agree+ent *ith previous land o*ner 2 avoiding +unicipal
regulations
- so court declined to 3uash the byla*
9ai(er
- failure to ob,ect (ie to bias) this +ay be ac3uiescence
- parties should not *ait to see if the decision is in their favour
- agency should be given the opportunity to rectify any
proble+s