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Procedural Fairness

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
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,
-+ 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+ 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
@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
$+ 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
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
"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)
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
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"
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
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 $%
5 right to cross *itnesses *ho testify orally1put for*ard evidence in
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
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)
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 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 $O7E#S (Carltona Doctrine)
5 no e)press act is necessary to allo* delegation to officials
5 the nature of +inister4s po*ers 8 i+possible to carry out all tas&s
5 official is NO/ a delegate their actions presu+ed to be action of
5 EK!E$/=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#
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
5 Geza' can use leading cases, but decision here *as overruled bc of
bias and i+proper influence
5 *ritten directions outlining ho* specific types of cases should be
decided or ho* agency officials should carry out their
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
F) !ONSAL/./=ON 7=/2 S/.%%1.IEN!Y
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
1- legislative standardC
D- .nalogous !aseC
E- .pply Duns+uir Standard of #evie* 8 F %actors fro+
- 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
- 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 $%
- D got his ,ob bac&
- TEST ; Standard of Re(ie. 7nal#sis & !orrectness and
- Deference' reasona$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
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
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
<5 the e4%ertise of the tri$unal
- )ush5anathan' the court assesses the e)pertise of the tribunal
and then considers the court4s o*n e)pertise relative to the
tribunal, then as&s ho* specific the issue is before the
decision5+a&er in relation to their e)pertise (e)- labour la*,
nuclear plants, etc)
Factors Indicating !orrectness
- ?uestion of la. that are of cental i+portance to the legal
syste+ as a *hole
- constitutional ?uestions regarding division of po*er
- 3uestions of ,urisdictional lines bet*een co+peting tribunals
- true 3uestions of ,urisdiction 8 is it ultra viresC
Dunsmuir revie*ed on standard of reasonableness
KH4&A (street racer case)
- case heard by the =++igration .ppeal Division of the
=++igration and #efugee "oard
- applied L factors turned on the seriousness of the offence and
the possibility of rehabilitation
- B testified before the =.D and they said he didn:t sho* enough
- S!! held' found the standard *as reasonableness and the
decision *as reasonable (7S> .ithin the range of %ossi$le
reasona$le outco"es2+
- 7%%lied < Factors' there *as a privative clause indicating
deference, the purpose of the =.D decisions are revie*able
only if the %ed !ourt grants leave to co++ence ,udicial
revie*, the 3uestion 8 =.D had po*er to grant e)ception
relief, the e)pertise of the =.D
- 2ELD' decision *as reasonable not to grant hi+ an e)ception
to the re+oval order
Association des Courtiers et Agents v )ro5rio Direct Inc
- a decision re3uiring +e+bers to pay fees once a house *as
- 3uestion *as *hether rule could +e +odified under contract
- standard .as reasona$leness the co++ittee *as
interpreting its statute decision upheld
- ,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$leness
- held' decision *as *ithin the range of possible reasonable
Northro5 Grumman 4verseas &ervices Cor5
- issue about *hether Northrop had standing before the
!anadian =nternational /rade /ribunal to co+plain about an
unfair bidding process
- S!! held' loo&ed to previous case la* to deter+ine that the
!=//4s decision *as re(ie.a$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
%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
- =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
(f) acted in any other *ay that *as contrary to la*-
- "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$ling 7ct contains a %ri(ati(e clause,
relative to the courts the tribunal +ust be considered to be an e)pert
tribunal in relation to all +atters over *hich it has e)clusive
(D) =n a ,udicial revie* proceeding relating to e)pert tribunals under
subsection (1)
(a) a finding of fact or la* or an e)ercise of discretion by the
tribunal in respect of a +atter over *hich it has e)clusive
,urisdiction under a privative clause +ust not be interfered *ith
unless it is %atentl# unreasona$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
(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
- *here there is no standard provided by statute & a right of
a%%eal is a factor indicating less or no deference
- 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
- 7s0 is Seg"entation a%%ro%riate2 and ho. .ould the
results $e different2 ,*5 seg"entation a%%roach' -5 unifor"
- "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
- "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
- 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
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
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
*5 Legislation "a# $e (alid' $ut the %articular decision "a#
$e unconstitutional
-5 Legislation "a# $e Unconstitutional
5 if there rights have been reached it *ill depend on a charter
analysis under s 1 and Oa&es /est
5 challenge to freedo+ of e)pressions s -,$+
5 no decision5+a&er can have a discretionary po*er that allo*s hi+
to +a&e decisions contrary to the !harter
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
- *here !harter values are a factor (Cham#erlain) the
!harter values should be e)a+ined in ad+inistrative process
- DO NO/ apply Multani
- 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
- ,note if there .as a se%arate issue it could ha(e $een
anal#sed under standard of re(ie.+
- application of Multani freedo+ of e)pression (anti5aborition
- court found that as decision violated the !harter (s Db and
could not be saved by s 1) there *as no need to 3uestion
ad+inistrative la* principles
- e)tradition of a person to AS for drug traffic&ing
- the correct legal test re3uired a standard of reasona$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
- "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
- 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 $efore the
- the /ribunal has a DA/Y to decide constitutional 3uestions
9hich Tri$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
- 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
$aul had an aboriginal right to cut ti+berC
- S!! held found that the !ode itself *as constitutional
- !o++ission could decide issues of la* *hich included
aboriginal rights
- the decision *as therefore revie*able on the correctness
s -< of the !harter can only be provided by a court of
Gco"%etent DurisdictionC
- DF(1) 8 to grant such relief as a%%ro%riate and Dust in the
circu"stance (declaration of rights, court orders1in,unctions,
- DF(D) 8 evidence obtained in a +anner that violates the
!harter can be e)cluded
!an a Tri$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 to a.ard s
-< re"edies2
anal#sis the sa"e under -< as under 6- ; ?uestion is .hether
the tri$unal has the Durisdiction to grant the %articular re"ed#
sought .hich is an e4ercise in statutor#
inter%retation1legislati(e intent
F7!TORS in Con0ay
5 found that the "oard had the to decide ?uestions of la.
and therefore *as a court of co+petent ,urisdiction' (3uasi5,udicial
body, authorised to decide 3uestions of la*, right of appeal, no
e)press re+oval of po*er to +a&e constitutional decision)
s DF(D) Mooring
- challenged ad"issi$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 to e4clude e(idence
- therefore & cant e4clude e(idence $ut can see ho. the
ad"issi$ilit# .ould affect PF and s I
- bringing an application for ,udicial revie* 8 it depends on the
,urisdiction governed by statute or the applicable rules of
- 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)
)+ $alance of con(enience (*hich side *ill suffer greater har+ is
stay is allo*ed1refused) *here the action of a public authority is
in issue the public interest *ill be considered (Manito#a v
Metro5olitan &tores)
5 sa+e test is for interlocutory in,unction
Brotherhood v Canadian )aci!ic td
- a court has discretionary po*er to order interlocutory
in,unctions, even *here the court does not other*ise have
,urisdiction over the +atter
- *ho can bring an app for ,udicial revie* of an ad+inistrative
o interested %ersons (includes original parties before
the tribunal and persons directly affected by the
decision8 private rights are interfered *ith, *ho
suffer special da+age or e)ceptional pre,udice +ust
be a sufficient ne)us bet*een the in,ury and the
action being challenged)
o %arties acting in the %u$lic interest
o the 7/3 (on behalf of public interest)
o the agenc# .hose decision is in issue
- recipient of social services benefits
- under !anada .ssistance $lan Hanitoba did not have to
co+ply *ith sa+e re3uire+ents as other provinces *hich
*ould have increased the benefits payable to %
- S!!' % had a personal interest in the legislation but the
ne)us *as too re+ote for standing on ground of personal
- .5r5t %u$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
$+ serious issue raised
c+ individual has genuine interest in the issue (not a +ere busy
d+ no other reasona$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
- 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 $rivacy
!o++issioner- /he !o++issioner ordered disclosure of
al+ost all the pages-
- /he !hildren4s La*yer applied for ,udicial revie* of the
!o++issioner4s decision-
- /he !o++issioner filed a factu+ in the ,udicial revie*
proceeding atte+pting to ,ustify the decision on additional
grounds fro+ those set out in the !o++issioner4s original
- found that it *ill be necessary to consider' *hether the
tribunals sub+issions are necessary for the +atter to be fully
- the tribunal should +aintain the appearance of neutrality
- nature of the 3uestion is there an allegation that the
institutional decision +a&ing process is unfairC
Prerogati(e 9rits
*+ certiorari 8 3uash the decision 8 co""on re"ed# for PF
- +atter is often re+itted for reconsideration this +ay be done
*ith directions (Ba*er the direction that a different officer
consider the +atter)
-+ %rohi$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
6+ ?uo .arranto
- used to in3uire into the authority to ,ustify public action
- 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)
- 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
- 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
- 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
- if the alternative re+edy *ill not be ;ti+ely and effective4 85
the can have ,udicial revie* at sa+e ti+e (Gates+
- 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)
- if the dispute has no practical significance for the applicant
- 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
- if the li+itation period is over this +ay be a bar to start
- even if no li+itation period if too +uch delay the court +ay
decline to grant relief
- Homex 2o+e) see&ing to avoid the conse3uences of an
agree+ent *ith previous land o*ner 2 avoiding +unicipal
- so court declined to 3uash the byla*
- 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