CANADIAN ADMINISTRATIVE LAW (from Wikipedia)

Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies. That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers (ADMs) such as a board, tribunal, commission, agency or minister. The body of law is concerned primarily with issues of substantive review (the determination and application of a standard of review) and with issues of procedural fairness (the enforcement of participatory rights). Administrative law concerns the statutes and rules of government operations. Courts ensure that ADMs observe the limits on the authority. Also, declaration and equitable injunction remedies exist.

Contents 1. 2. Sources of law Substantive review a. Standards of review i. Reasonableness ii. Correctness iii. Previous Standards Procedural fairness a. Legitimate Expectation b. Duty of fairness c. Content of Duty of Fairness: Baker Test Procedure for Judicial Review a. First Step i. Second Step ii. Third Step iii. Fourth Step Chart SOURCES OF LAW

3.

4.

5. 1.

The powers of an ADM are primarily created by statute, which is known as the "enabling statute". These powers are limited by the legislative authority of the enabling government provided under section 91 or 92 of the Constitution Act, 1867. Superior Courts (known as Section 96 Courts) have an inherent power at common law to review any decision of an ADM. A judicial review allows for the court to consider the entire decision-making process, including the
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process, the findings of fact and of law. The power of judicial review is found either in the enabling statute or by virtue of the common law. The common law powers are derived from the four original writs of certiorari, prohibition, mandamus, and habeas corpus.

Courts may also review a decision through a statutory appeal when the review power is explicitly granted within the enabling statute that created the administrative body. Appeals are typically reviews for errors of law.

These powers are also frequently limited by privative clauses or finality clauses within the enabling statute. A privative clause will declare the ADMs decision is "final and conclusive" and/or that the ADM has "exclusive jurisdiction" over the matter, effectively removing any power of review. As established in Crevier v. Quebec (1981), the Constitution requires that the courts be able to supervise errors of ADMs and so the legislature cannot completely oust them from that power, nor can an ADM completely replace a Superior Court.

2.

SUBSTANTIVE REVIEW

The courts' power of substantive review allows it to consider the content of an ADM's decision and decide whether is was sufficiently incorrect to warrant sending it back for reconsideration. Where a court has the power of substantive review it must undertake the review using a standard of review which dictates the amount of deference that the court should give to the ADM. The decision and the evidence are reviewed based on the appropriate standard of review for the circumstances.

Determining the standard of review is a particularly contextual process and can vary based on the type of ADM or even the specific matter at issue. The modern method to determine the standard of review used to be known as the "pragmatic and functional approach" and is now known simply as the "standard of review analysis". Its purpose is to determine the amount of review that the legislature intended.

The determination is made based on four contextual factors: 1. the presence or absence of a privative clause or statutory right of appeal;
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2. the expertise of the tribunal relative to that of the reviewing court on the issue in question; 3. the purposes of the legislation and the provision in particular; and 4. the nature of the question law, fact or mixed law and fact

None of the factors are determinative and will vary in significance based on the circumstances. Not all of these factors need be examined in a particular case. From these factors, and any other applicable contextual factors, the courts will determine which of two standards of review will be applied. Where deference was intended the courts will review the ADM on the basis of reasonableness. Where little or no deference is intended the ADM will be reviewed on a standard of correctness.

Standards of review Following the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, there are 2 standards of review:

Reasonableness Reasonableness is the deferential standard that a court can give to an ADM. Where the decision is a matter of law, a mix of fact and law or a discretionary decision it is said that the decision is unreasonable where the decision is "not supported by any reasons that can stand up to a somewhat probing examination". In other words, it is unreasonable where "there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived." Correctness Correctness is the least deference that court can give an ADM. The court will give no deference at all and will judge the decision on the basis of whether it is correct in law. A court may substitute its own opinion for that of the ADM.

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Previous Standards: Patent Unreasonableness Further information: Patently unreasonable Patent unreasonableness was the highest level of deference that the court could give to an ADM, prior to the Supreme Court's decision in Dunsmuir v. New Brunswick on March 7, 2008. It meant that a decision had to be so egregious that it was patently unreasonable. This very high standard was almost impossible to meet. Now, only two standards remain: reasonableness and correctness.

3.

PROCEDURAL FAIRNESS

Procedural fairness concerns the entitlement of rights during the deliberation of a case before an ADM. These rights flow from two principles of natural justice, the right to be heard (audi alteram partem) and right to be judged impartially (Nemo judex in sua causa). These rights can be conveyed by the Canadian Charter, "umbrella" legislation, the ADM's constituting legislation, and the common law.

Legitimate Expectation Legitimate Expectation of procedural fairness applies: When a public authority had promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty" - Old St. Boniface Residents Assn. Inc. v. Winnipeg In this way the courts have found procedural fairness through a promise by an ADM. There are requirements for what constitutes a legitimate expectation though.

The test is: 1. A public authority makes a promises 2. That promise is to follow a certain procedure 3. In respect to an interested person 4. They relied and acted upon that promise

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According to CUPE v. Ontario (Minister of Labour);[12] if the promise is clear, unambiguous and unqualified representation as to a procedure then it creates a legitimate expectation. This applies also to an established practice or conduct of a given ADM.

Legitimate exception will not apply when dealing with a legislative decision, promises that conflict with statutory duties, and substantive promises.

Duty of fairness The common law imposes a duty of fairness in certain administrative proceedings.[13] The duty can only be invoked where the circumstances satisfy a threshold based on three factors set out by the Supreme Court in Knight v. Indian Head School Division No. 19.[14]

First, the nature of the decision must be sufficiently administrative or quasi-judicial. Decisions that are of a "legislative or general nature" which are based on broad policy issues rather points of law are not likely to warrant a duty of fairness. [15] Furthermore, the decisions must be final in nature, not preliminary or interlocutory.[16]

Second, the relationship between the (public) body and the individual must be based on an exercise of power in pursuant to a statute (or prerogative power). Third, the decision must affect the claimant's rights, privileges or interests.[17]

Where the circumstances satisfy the threshold test to invoke a duty of fairness a claimant will be entitled to certain participatory rights including pre-hearing rights, such as rights related notice, disclosure, discovery, and delay, as well as hearing rights, such as rights related to the form of hearing, counsel, examinations, and reasons for judgment.

Content of Duty of Fairness: Baker Test Baker v. Canada clarified administrative law in Canada in relation to both substantive matters (discretionary decision making) and procedural matters (procedural fairness). The content of the duty of fairness depends on the type of right and the circumstances of the case. There are five factors that affect the content of this duty:[18]

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1. The nature of the decision. It asks whether the decision is more for the purpose of resolving dispute, protecting individual rights or some other judicial purpose rather than a decision that balances many interests and primarily considers policy. 2. The importance of the interest at stake in the decision relative to other interests. 3. The statutory scheme under which the decision is made. This primarily focuses on whether the decision is final and conclusive or if whether it is preliminary or if there is a right of appeal. 4. The legitimate expectations of the parties based on whether there were any representations by word or conduct that lead the parties to believe there was some type of procedural protection. 5. The procedural choices available to the ADM. The ADM must be accorded some deference to its practices and policies necessary to accomplish its mandate.

With respect to discretion, historically, the standard of review for discretionary decisions applied by the courts was that of correctness. However, this changed in Baker where the Supreme Court of Canada emphasized the awkward line between questions of law and discretion. The court recognized that the 'pragmatic and functional' approach, as outlined in Pushpanathan, should be applied when looking at issues of discretion. In addition, courts are able to apply a standard of reasonableness to discretionary decision making. Baker has significant impact on taking into account relevant factors, irrelevant factors, and acting for an improper purpose.

4.

PROCEDURE FOR JUDICIAL REVIEW

First Step Ask: Are there discretionary reasons why the case should not be allowed to proceed to judicial review? Is there an alternate remedy? Look at the legislation to see whether it is Federal or Provincial. Overall, courts will deny an application for judicial review when alternative procedures are available. However, under s. 2(5) of the Judicial Review Procedure Act a court can still grant relief.
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Second Step Ask: What standard of review should the courts apply? This can be answered by looking at past case law. Starting with CUPE v. New Brunswick Liquor Corp. which introduced the 'Pragmatic and Functional approach' which consisted of three standards: correctness, reasonableness and patent unreasonableness . Subsequent cases reaffirmed this such as Bibault and Southam. The 'Modern Standard' of review was then approached in Pushpanathan v. Canada (Minister of Citizenship and Immigration) which was affirmed in Baker. Recently there has been a new approach in Dunsmuir v. New Brunswick where the Supreme Court eliminated 'patent unreasonableness' consequently leaving only correctness and reasonableness. The standard of review analysis must be analysed before judicial review.

To determine whether deference is owed to a decision, one must then look at the four factors mentioned above, namely: 1) Is there a privative clause or a right of appeal? 2) What is the level of expertise? 3) What is the purpose of the Act as a whole and the provision in particular? 4) The nature of the problem (question of law or fact)? Once a court has looked at these four factors, then they can apply one of the two standards of review - Correctness (no deference) or Unreasonableness.

Third Step Ask: Did the administrative body abuse or misuse their discretion? This can be answered by examining the factors determining the scope of the administrative bodies discretion: Expertise; nature of the decision; language of the provision and the legislation; whether the decision is polycentric; intention revealed by the statutory language. When there is more discretion left to the decision maker, there more reluctance for the courts to interfere.

Adding to this, is to ask: What type of abuse? This can be answered by looking at the Grounds for Review of abuse of discretion. As well as the question of is there delegated

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legislation and whether it is an unreviewable discretionary power (e.g. privileges - not reviewable; prerogative powers - reviewable)

Fourth Step Concerns the duty of fairness. (As mentioned above) There are two components to the duty of fairness: participatory rights and protection against bias.

Participatory rights - Should a duty of fairness be imposed? While in Cooper the courts recognized the duty of procedural fairness is not limited to the judicial process, they retreated from this proposition until it was resurrected in Nicholson and Knight. The fact that a decision is administrative and affects 'the rights, privileges or interests of an individual' is sufficient to trigger the application of the duty of fairness (Cardinal). As well, the fact that a decision maker does not act judicially does not mean that there isn't a duty to act fairly (Martineau). Subsequently, does it pass the threshold of procedural fairness? There are three factors for the existence of a general duty (Knight, as cited in Cardinal) 1) nature of the decision to be made; 2)relationship between that body and the individual; 3)effect of that decision on the individual's rights. There are some exceptions, one being in the case of emergencies. (Also, here one would see if the Statutory Powers Procedure Act would apply if in Ontario which you could apply a four part test: 1)Is there a statutory power of decision being exercised?; 2)Whether the empowering legislation expressly includes or excludes the SPPA (or relevant legislation); 3)Whether the tribunal is excluded under s. 3(2); 4) If the entity is not expressly excluded, whether an oral hearing would be required otherwise by law? (The SPPA will only apply if an oral hearing is required by law)Was notice given? Is discovery an issue? Is delay an issue? What is the type of hearing they are seeking? Such as an oral hearing (see Khan)where the right to an oral hearing is the highest when credibility is in issue. As well participatory rights are not going to ensure an oral hearing in every issue (Baker). Is the right to counsel in question? Is there a requirement for reasons to be provided?

Protection against bias - This is the second fundamental principle of procedural fairness the affected parties have the right to a bias free decision. There are two types of bias: 1)
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Direct or pecuniary and 2) Reasonable apprehension of bias. The test for this is: What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude? (National Energy Board). Factors can include: Kinship, friendship, partisanship. Whether or not there is an apprehension of bias may depend on the degree of deference afforded a particular administrative actor.

5.

CHART

There are two grounds for reviewing an administrative tribunal decision:

1) PROCEDURAL (Martineau) a) Natural Justice -applies to judicial/quasi judicial context -right to notice/be informed -impartiality and bias Bias: personal, institutional, institutional decision

b) Fairness -applies non-judicial context -Nicholson -elements: right to know case, right to make choice made by tribunal submissions, reasons of decision maker

Factors affecting duty of fairness (Baker): i) Nature of decision ii) Nature of Statutory scheme iii) Importance of decision iv) Legitimate expectations v) choice made by tribunal vi) Charter S. 7 -Knight

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2) SUBSTANTIVE ERROR (LAW/FACT/MIXED) -Ask if an error of law or of fact or mixed - what is the standard of review? (Dunsmuir) (Knight)

Either: i) Correctness- less deference ii) Reasonableness more deference

Factors affecting choice of standard: (Dunsmuir, Baker) Privative clause (Could lean towards reasonableness) Expertise Interpreting Statute Purpose of Statute Nature of error a. Law less deference b. Fact more deference -Also: Discretionary decisions which typically attract more deference

Procedural Fairness

1) Was the person owed procedural fairness? Identify the trigger for procedural fairness originating in Knight

2) examine the content of procedural fairness with reference to the variables in Baker

3) natural justice and two important elements set out in Nicholson

4) go through rules of procedural fairness and see if apply

5) does the SPPA apply? Federal? provincial?

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6) was there bias?

7) effect of breach of procedural fairness

8) what remedies are owed

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STANDARD OF REVIEW

In law, the standard of review is the amount of deference given by one court (or some other appellate tribunal) in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower court's decision. A high standard of review means that deference is accorded to the decision under review, so that it will not be disturbed just because the reviewing court might have decided the matter differently; it will be varied only if the higher court considers the decision to have obvious error. The standard of review may be set by statute, rule or precedent.

In Canada, a decision of a tribunal, board, commission or other government decision-maker can be reviewed on two standards depending on the circumstances. The two standards applied are "correctness" and "reasonableness." In each case, a court must undertake a "standard of review analysis" to determine the appropriate standard to apply. This approach was described in detail by the Supreme Court of Canada in Dunsmuir v. New Brunswick.

The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a palpable and overriding error." A palpable error is one that is plainly seen. The reasons for deferring to a trial judge's findings of fact can be grouped into three basic principles. Firstly, given the scarcity of judicial resources, setting limits on the scope of judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of deference promotes the autonomy and integrity of the trial proceedings. Finally, this principle recognizes
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the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce.

The same degree of deference must be paid to inferences of fact, since many of the reasons for showing deference to the factual findings of the trial judge apply equally to all factual conclusions. The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard.

Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only when the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion

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