ADMIN OUTLINE I. PROCEDURAL FAIRNESS a.

Generally: Procedural fairness concerns the entitlement of rights during the deliberation of a case before an administrative decision-maker i. These rights flow from two principles of natural justice: 1. The right to be heard (audi alteram partem), and 2. The right to be judged impartially (Nemo judex in sua causa) ii. These rights can be conveyed by the Charter, "umbrella" legislation (ie: the BC Administrative Tribunal's Act), the administrative decision-maker's enabling statute, and the common law iii. Here, the court is not interested in the actual decision that the tribunal came to in the end (the substance) but in the procedures followed by the tribunal in coming to the decision b. Summary of Analysis: There are several parts to this inquiry: c. The "Threshold Question" - Is this the kind of decision that should attract some kind of procedural right? Three actual thresholds here: i. Is there an obvious need for natural justice, based on the statute and facts? Generally, if a delegated decision affects an individual's rights or interests, there will be some minimum entitlement to procedural fairness ii. If the person is not entitled to natural justice, are they entitled to procedural fairness? iii. Is there an exception to general rule included where the decision is a legislative/policy decision or if the decision is preliminary/investigative? iv. Baker identified 5 factors relevant for determining level of procedural fairness: 1. The nature of the decision and the process followed in making it (final/interim?) 2. The nature of the statutory scheme (legislative v. administrative activity) 3. Importance of the decision to the individual (rights, privileges, or interests?) 4. The legitimate expectations of the parties, and 5. The procedure chosen by the tribunal 6. Is the person entitled to fundamental justice? a. Does the Bill of Rights or the Charter apply? v. Traditionally, threshold test was done at common law, but now includes s.7 right not to be deprived of life, liberty, or security of the person except in accordance with fundamental justice d. The Content of Procedural Fairness - if a court determines that the threshold for some form of procedural fairness has been met, the court must address what those procedures will bethe kinds of procedural rights will be based on whether the applicant receives: Natural Justice, Procedural Fairness, or Fundamental Justice (Charter and Bill of Rights apply) i. Having determined the general level, the court will decide what specific procedures, including: 1. Notice that the decision is going to be made 2. Disclosure of the information on which the tribunal will base its decision 3. Some meaningful opportunity to participate or make views known 4. Full hearing similar to that which occurs in a court 5. Opportunity to give evidence and cross examine (discovery and disclosure) 6. Right to counsel 7. Oral/written reasons for its decision ii. Often legislation will expressly lay out the kinds of procedures applicants are entitled to iii. In BC, the Administrative Tribunals Act focuses on empowering a tribunal to enact its own rules iv. Where a statute (either umbrella or specific to the tribunal) specifies a certain kind of procedural right or specifically denies a procedural right that would otherwise have been available at CL, the statute prevails over the common law e. Bias - If a decision-maker acts in a biased matter, what happens? What is biasis it attitudinal bias, actual bias, the appearance of bias? f. Independence i. Related to bias, but more about the systemic structure of a board or tribunal as opposed to individual decision-making

ii. Do members of tribunal have financial security? Do they have security of tenure? Are they so dependent to the government that they can't be perceived as making independent decisions? g. Institutional Decision-Making i. Refers to the degree to which boards and tribunals can consult with others to whom the person affected will not have had the opportunity to present his or her case ii. EG: if high caseload, can only one member hear the application but full board makes the decision? h. Keep in mind these 5 points regarding procedure when conducting an analysis: i. Procedural fairness does not equal substance 1. Getting procedural fairness does not guarantee a specific result 2. Courts more willing to intervene on procedural issues because they are more familiar with rules 3. Therefore, an applicant may/may not be able to have access to discovery of documents, written submissions, ect ii. Procedure matters 1. Good procedure is equivalent to fairness 2. Level of procedural fairness in the justice system represents liberty in greater society iii. Two-Step Analysis 1. Threshold Is the applicant entitled to any procedural fairness at all in the decision? 2. Goes from natural justice procedural fairness fundamental justice 3. Although the duty applies to a wide range of decisions, there are still some that don't apply iv. Content What sort of procedural rights does the applicant get? 1. Courts must first determine the degree of fairness that is required before particularizing the content of the duty and deciding whether or not the duty was met 2. EG: adequate notice, oral/written submissions, discovery of documents available, ect... v. Various Sources of Procedural Rights - Procedural rights are not usually set out in the enabling statute. Therefore, other sources include: 1. Common Law - Prior decisions set out what individuals get from different agencies in terms of fairness 2. Statutes and Regulations a. BC ATA is an overarching statute that harmonizes procedural fairness rules generally in BC b. Bill of Rights and Charter allow rights to be restricted except those of fundamental justice c. Agency guidelines and rules (different than the enabling statute) vi. Baker and the Roadmap - See later, but must consider nature of the interests at stake, how central the rights are, whether the decision is final or preliminary, the nature of the statutory scheme, ect

II.

The Threshold Test Is this the kind of decision that should attract some kind of procedural right? a. Duty of fairness applies to any decision that affects an individuals rights, interests, or privileges. b. Two questions arise when judicial review proceedings are brought alleging a breach of the duty: i. What is the threshold for the application of the duty of fairness? (right, interest, privilege, legitimate expectation) 1. Do any exceptions apply? (policy, legislative decision) ii. How is the content of the duty determined? c. The duty applies to Decisions only: i. Nicholson v. Haldimand-Norfolk Police Commissioners: Regulations provided police who served more than 18 months w/ the right to a hearing prior to any penalty being imposed. N served for 15 mos. and discharged w/o a chance to make submissions 1. Affirmed the common law duty of fairness to administrative decisions even where statutory procedural protections do not apply. Nicholson cannot claims the procedural protections afforded to a constable with more than eighteen months' service-- but must be treated fairly. d. The duty applies to Final decisions v. Preliminary Inquiries: i. The duty of fairness applies to decisions, meaning final dispositions of a matter, and will rarely apply to investigations or advisory processes that do not have any consequences

1. Dairy Producers: there is no duty to act fairly in the early investigative stages of proceedings,
as the duty only applies to decisions or final dispositions of a matter

2. Re Abel: Duty may apply to interim decisions where the impact on the claimant is so
significant that the decision amounts to a final disposition of the matter

3. Irvine: Greater procedural rights at later stages can offset hardship suffered from lesser
procedural fairness rights at earlier stages (ie: info-gathering for law enforcement)

ii. Knight: preliminary decisions will receive less procedural fairness than final decisions. Re Abel:
However, investigations and advisory processes may have a considerable impact on affected persons, especially when they are conducted in public, so if a preliminary decision has a great impact on the final decision, then procedural fairness applies iii. Re Abel (1979 Ont. Div. Ct) (the "even though you claim to be an 'advisory board', I deserve procedural fairness because your refusal to disclose my psychological reports before the Board denies my right to know the case I have to meet" case). To determine the content of procedural fairness for interim decisions, look at: 1. Degree of proximity between preliminary and final decision - Here, the preliminary decision was Abel's only chance at getting a positive final decision by the Lieutenant G-C 2. Degree of harm faced by the applicant - Here, a denial of procedural fairness resulted in imprisonment and a deprivation of liberty, so big time harm iv. Dairy Producers' Co-op v. Saskatchewan (1994 Sask. QB) (the "even though you're at the initial investigative stage of a sexual harassment complaint, we should full disclosure of the complaint during the investigation because settlement negotiations failed" case). 1. While procedural fairness requires that the applicant (1) receive notice of the substance of the case against him, and (2) be given the opportunity to respond, these requirements only apply to determinative stages where such a duty exists. 2. Here, the original investigation and the settlement negotiations had no duty of procedural fairness imposed on both because there was little degree of proximity between their processes and the Human Right Commission's final decision v. Irvine v. Canada (1987 SCC) (the "I didn't get procedural fairness in my anti-trust matter because the investigator who wrote a report to the Board as to whether to have a full hearing and prosecution didn't give me any notice or an opportunity to be heard" case). Here, there were two preliminary stages, both of which didn't attract any degree of procedural fairness: 1. Step 1 Information Gathering - Not final and not public, as the investigator only gathers facts for the Minister. 2. Step 2 Information Processing - Commission processes info gleaned by Director via Hearing Officer, but while they can make recommendations to Minister on whether to prosecute, neither the Director or Commission can actually prosecute for unfair trade practices. Therefore, greater procedural rights at the full-blown inquiry can offset any hardship suffered by lesser procedural rights at early stages of the process, as courts don't want to unduly burden law enforcement with judicial processes e. Rights, Privileges, Interests i. Knight v. Indian Head School Division (1990 SCC) (the "even though I was a public office holder at pleasure, I claim that my procedural fairness rights were violated because I had no oral hearing" case): While Dunsmuir (2008 SCC) undermines Knight, the case still makes two contributions to administrative law: 1. The existence of a general duty to act fairly by public decision-making body will depend on the consideration of three factors (when all 3 present, duty to act fairly): a. nature of the decision to be made by the administrative body; i. 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. ii. Decisions must be final in nature - a decision of a preliminary nature will not trigger procedural fairness. The more final the decision, the more fairness will be required.

b. relationship existing between that body and the individual; and

i. All we are concerned with, is whether the body is exercising a power stemming from a statute or prerogative power ii. Employer-employee relationship in this case. The employer is a public body exercising statutory power, so this is why we are concerned. c. effect of that decision on the individual's rights. i. There is a right to procedural fairness only if the decision is a significant one (e.g. employment) and has an important impact on the individual. 2. But it is important to respect the needs of administrative decision-makers. a. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair. 3. While Knight holds the contract isn't determinative of procedural rights, Dunsmuir overrules this and holds that explicit language in a statute or K of employment can trump common law duties of fairness for public employees. Therefore, since the law no longer draws a distinction between public office holders and other employees, the duty of fairness will no longer have any application to employee dismissals

ii. Cardinal v. Kent Institution (1985 SCC): (the "even though you had statutory power to segregate
prisoners, you couldn't deny our release after the Board recommended our release after the hostagetaking, despite what you think is 'necessary'" case): 1. Confirms that every public authority has a duty of procedural fairness when making an administrative decision which is (1) not of a legislative nature, AND (2) which affects the rights, privileges, or interests of an individual 2. Here, due to the serious impact of the decision on the applicants, there was a minimal common law duty of fairness requiring (1) the right to be heard, AND (2) the right to have notice of the case against them (subject to limits depending on context) iii. Dunsmiur v. New Brunswick: Dunsmuir was employed at pleasure (appointed by Cabinet) and employment was regulated by private law and the Civil Services Act. He had a dual role: at pleasure meant he could be dismissed without notice or reason but he was also a civil servant and the CSA prescribed that his tenure was subject to the ordinary rules of contract. 1. Whether a duty of proc fairness exists depends on the facts in consideration of the substantive rights of the parties set down by applicable law 2. The distinction between public office-holders and public contract workers is irrelevant in regards to the duty of fairness; whether a duty of proc fairness exists depends on the nature of the relationship btw the parties(rejecting Knight v Indian Head School, that only public office holders have recourse to CL fairness where the applicable law leaves him without any protection) a. In determining the nature of the relationship one must take into account legal context (relevant statutes AND contracts [AND Charter]) b. CL duty of fairness will apply where (i) there is no contract or contract does not offer any protection; or (ii) where contract/statute necessarily implies a duty of fairness (with the extent determined by the wording and context) c. Where private obligations of fairness are not performed in good faith, private law remedies apply (in employment context by increasing required notice) d. A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional public law duty of fairness 3. If the Crown is acting as any other private actor would in hiring its employees, then it follows that the dismissal of its employees should be viewed in the same way, ie contractually. f. Doctrine of Legitimate Expectations i. If a plaintiff has legitimate expectations that a certain procedure will be followed, that procedure may be required by the duty of fairness. While this doctrine gives a right to procedural fairness, it does not

ii.

iii.

iv.

v.

give rise to any substantive result (ie: only a threshold issue). An expectation of a hearing which may arise out of, (i) an express statement or representation (i.e. a promise); and/or (ii) an established practice. Reference Re Canada Assistance Plan a Fed welfare scheme authorized the federal government to enter into agreements w/ provinces for sharing of costs of provincial social assistance & welfare programs. When Fed introduced a bill that capped its financial contribution, Provs argued it was unlawful b/c it violated a legitimate expectation. 1. Legitimate expectations don't create substantive rights 2. Legitimate expectations can't constrain essential democratic features - Can't have new governments restrained from making policy changes due to doctrine of legitimate expectations. Mount Sinai Hospital v. Quebec: The doctrine of legitimate expectations looks at the conduct of the public authority in the exercise of that power including established practices, conduct, or representations that can be characterized as clear, unambiguous, and unqualified, and the expectations can't conflict with the authority's enabling statute. 1. Legitimate expectations - Only applies to procedure based on the course of dealings, without guaranteeing any substantial outcome. Must look at whether the gov't/agency made promises and whether it would be unfair to renege on normal promises. Here, while the hospital had a right to be heard according to procedural fairness, they didn't have an actual right to get the proper license because legitimate expectations doesn't guarantee a substantial outcome CUPE v. Ont. (Ministry of Labour): Hospitals had to resolve labour disputes according to Act; practice had usually been to appoint mutually acceptable arbitrators for resolution of disputes. Minister appointed 4 retired judges, but they were not chosen by mutual agreement and unions not consulted. Unions complained that appointees lacked expertise, tenure, experience and independence from government. 1. A general ambiguous promise does not suffice to trigger the doctrine of LE. There was no unequivocal set past practice the promise to return to past practice was open to interpretation and the union and Minister had diff interpretations. A promise must be clear and unambiguous to trigger the doctrine of LE. Baker v. Canada: (the "I had a legitimate expectation based on the Convention of the Rights of the Child" case). While legitimate expectations is part of the doctrine of fairness/natural justice, it does not create substantive rights; it will only affect the content of the duty of fairness owed to the individual affected by the decision. 1. If claimant has LE that a certain procedure will be followed, it will be required by the duty of fairness; if they have LE that a certain result will be reached, fairness may require more extensive procedural rights than would otherwise be accorded; however, in none of these situations can LE lead to substantive rights outside the procedural domain. 2. Here, there is no legitimate expectation based on the CRC because it's not the equivalent of a gov't representation about how humanitarian and compassionate grounds will be decided, as it hasn't be incorporated into domestic law yet

g. Exceptions & Limitations to Duty of Procedural Fairness i. Procedural Fairness doesnt apply to Legislative Decisions: 1. Canada Assistance Plan: "The rules governing procedural fairness do not apply to a body exercising purely legislative functions." While a "purely legislative function" has never truly been defined by the SCC, primarily legislation passed by Parliament or a provincial legislature is exempt from the duty of fairness due to the separation of powers between the courts and the legislature. Categorical exemption of legislative functions becomes problematic when extended to include secondary legislation and policy. 2. p. 125: If an applicant for judicial review succeeds in convincing a Ct that a decision is subject to the duty of fairness, the Ct may dictate the required procedure & quash the decision if there has been a failure to observe it. Conversely, if the public authority succeeds in convincing the Ct that its actions are legislative in nature, then the duty of fairness doesnt apply. ii. Cabinet and Ministerial decisions

1. While cabinet and ministerial decisions are not subject to the legislative exemption per se,
Cabinet Ministers often wear "two hats" (ie: executive and legislative), so they can be categorized as legislative in certain circumstances 2. Inuit Tapirsat: decision made by CRTC allowing a rate increase without allowing petitioning group (IT) to be heard, was covered by the legislative exemption because the rate increase was legislative; the legislation authorized Cabinet to overturn a decision of the CRTC on its own motion. a. While the Governor-in-Council is not automatically sheltered from review, here the discretion of the Governor is complete provided he observes the jurisdictional boundaries of s.64(1). Therefore, Cabinet's decision to deny a hearing to IT was not an obligation, but a broad discretion at the high end of the policy-making spectrum that represents a polycentric decision requiring a balancing of multiple competing interests iii. Subordinate legislation Municipal Bylaws & rulemaking 1. Political approval for such legislation is subsidiary in nature, and thus the concern about interference in the political process is lessened, especially where the law-making authority has been delegated to actors outside the political process altogether, for example, independent tribunals. Substance is more important than form where the legislative exemption is concerned: Homex Realty. 2. Homex Realty: Legislative exemption from the duty of fairness is itself subject to exceptionspassage of this municipal bylaw was subject to the duty of fairness. a. SCC considers whether the municipality owed Homex a duty of fairness, and if so, whether the duty was breached- Plainly, the motivation for the bylaw was the particular dispute between the developer and the village was not in substance legislative but rather quasi-judicial in character. In these circumstances, the Court finds that the village was not allowed to couch its actions in a form (legislation) designed to oust the application of the duty of fairness. Substance is more important than form where the legislative exemption is concerned.

iv. Policy decisions - covered by the legislative exemption, as a purely ministerial decision, on broad
grounds of public policy, will typically afford the individual no procedural protection: Knight v. Indian Head. 1. Martineau v. Matsqui Istitution: Held that a purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection. The rationale for exempting policy decisions from the duty of procedural fairness is similar to that of formal legislative decisions. Both are inherently political in nature and are subject to political accountability. 2. Can. Association of Regulated Importers: Minister changed quota distribution system for the importation of eggs which significantly affected historical importers without notice. A small group claimed they should have been consulted. a. The Ministers decision was essentially a legislative or policy matter (to which the rules of natural justice do not apply and w/ which the courts will not interfere). Confirmed in Wells v Newfoundland.

III.

CONTENT of Procedural Fairness BAKER a. Procedural fairness is something less than natural justice, but how far it departs from natural justice depends on the factors which determine the content of the duty of procedural fairness b. Cardinal: every public authority has a duty of procedural fairness when making an administrative decision that is (1) not of a legislative nature, and (2) which affects the rights, privileges, or interests of an individual c. Nicholson: the content of this duty is flexible depending on the circumstances d. Baker: Jamaican woman in Canada applied for a humanitarian and compassionate consideration exemption under the Immigration Act. Immigration officer refused her application and she was provided w/ notes made by a subordinate officer, which the deciding officer relied on. i. All of the circumstances must be considered in determining the content of the duty of fairness.

ii. Court provides a non-exhaustive list of factors to be considered in context of circs. Underlying all
these factors is the notion that the purpose of the participatory rights contained w/in the duty of fairness is to ensure that admin decisions are made using a fair & open procedure with an opportunity for those affected by the decision to put forward their views and evidence and have them considered by the decision-maker. Factors affecting the content of the duty of fairness: 1. The nature of the decision being made and the process followed in making it. a. The more these resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. b. Considerations = the process provided for, the function of the tribunal, the nature of the decision making body, and the determinations that must be made to reach a decision. 2. The nature of the statutory scheme & the terms of the statute pursuant to which the body operates a. Greater procedural protections will be required when the statute does not make provision for appeal procedures 3. The importance of the decision to those affected by it a. The greater the impact on the person(s) affected, the more stringent the procedural protections that will be mandated b. 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. (Baker) 4. Any legitimate expectations a. If the claimant has an LE that a procedure will be followed, this procedure is required by the duty of fairness. b. If a claimant has an LE of a certain result, more extensive procedural rights may be required [but NOT substantive relief] 5. ADMs choice of procedure a. When the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances- deference to the procedural choices made by the decision-maker. iii. HELD: In Baker, both sides agreed that a duty of procedural fairness applied to H & C decisions, as it follows Cardinal in that it is clearly an administrative decision and affects "the rights, privileges, or interests of an individual"; therefore, the threshold question for natural justice/duty of fairness is conceded. iv. Here, after weighing the 5 factors, the failure to accord an oral hearing and give notice to Ms. Baker or her children was inconsistent with her participatory rights as required by the duty of fairness because while it's a discretionary decision, is an exception within the scheme of Canadian immigration law, and the statute accords considerable flexibility to the Minister to decide on the proper procedure, there is no statutory right of appeal and it's a decision of extreme importance to the applicant. e. Suresh v. Canada: S app as a landed immigration status turned down by the Minister b/c was danger to the security of Canada. Might be tortured in Sri Lanka. S had the opportunity to make written submissions and file material w/ the minister but did not have a copy of the immigration officers report, on which basis the certificate was issued, and as a consequence, was not able to respond at all. He claimed he was entitled to procedural protections under Charter s 7. Example of an application of the Baker factors: i. Nature of decision- Decision is of a serious nature = more fairness; discretion = less fairness ii. Nature of statutory scheme- where Act provides procedures = less need for proc safeguards; where Act makes no provision = strong procedural safeguards iii. Importance of decision to individual affected- more important the more proc protections required iv. Legitimate expectations- here Canadas ratification of the CAT gave rise to an LE v. ADMs choice of procedure- expertise of ADM or ADM admitted discretion = deference 1. Barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter 2. HELD: In order to pass the threshold a refugee must show prima facie (evidentiary threshold) that there is a real risk of torture before being entitled to the above requirements under s. 7.

The minimum content required by the duty of fairness to meet the requirements of fundamental justice under s. 7 of the Charter is (i) access to all relevant information the ADM intends to rely on; (ii) at minimum a written submission; and (iii) reasons.

IV.

SCOPE OF CONTENT of Procedure a. Generally: Knight: "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case" i. To determine the content, some start by looking at the enabling statute and whether the ATA provides for any procedural rights, but for a large range of administrative decision-makers, common-law considerations govern the scope and content of the duty of fairness, with Baker being the leading case

b. SUMMARY OF PARTICAPATORY RIGHTS: The duty is to hear the other side & decide the matter
impartially, independently, and without undue delay. The duty doesnt necessarily entail that the individual must receive an oral hearing sometimes written submissions are enough but the person must receive notice of the proceedings and have a full & fair opportunity to respond to the facts. Implicit in the duty to hear the other side is a duty to disclose such facts/contentions, barring considerations such as privacy and Natl security, which may justify nondisclosure. In some cases, the person may have right to legal counsel. These apply prior to the decision. If the decision affects an important interest, the decision maker owes the person reasons for the decision which applies after the decision has been made. c. RIGHT TO NOTICE OF A POTENTIAL DECISION i. Of the procedural rights a person entitled to a hearing may have, notice is the most important b/c w/o notice, the other rights cannot be exercised effectively or at all (Charkaoui v Canada) ii. The general rule is that notice must be adequate in all circumstances in order to afford to those concerned a reasonable opportunity to present proofs and arguments, and to respond to those presented in opposition. While it may be easy to assert that notice is required, it may be difficult to determine (usually decided based on the case law): 1. The appropriate length of notice 2. The way in which notice should be provided 3. The particulars that must be included iii. Canada v. Krever Commission: Rising incidents of HIV in tainted blood, Commission sent out notices to blood labs that the Committee might reach specific conclusions after inquiry and that those conclusions might lead to findings of professional misconduct. Issue was whether the Commissioner failed to provide adequate procedural protections or by the timing of the release of the notices. 1. Timing: Timing of notices depends on the circumstances of the case (criminal, admin etc.) a. The more extensive and complex the evidence is, the more likely the notices will be closer to the end of the inquiries. b. The notice must be given long enough before the date of the proposed hearing to give the party enough time to decide whether to participate or to prepare 2. Content: Notice must provide enough info about the issues to enable the party to respond in a meaningful way. d. RIGHT TO DISCLOSURE OF PARTICULARS i. Disclosure principles from criminal law don't apply to administrative proceedings; instead, it is enough that the administrative decision-maker discloses the information he/she replied upon and that the individual knows the case he/she must meet ii. Standard for pre-hearing discovery: Disclosure must be complete, subject only to privilege or irrelevance (R. v. Stinchcombe); Rationale: One must know the case one must meet iii. However, May v. Ferndale states that disclosure principles developed in the context of criminal prosecution in Stinchcombe, dont apply to admin proceedings. In this context, it is enough that the decision-maker discloses the information he/she relied upon. The requirement is that the individual must know the case he/she has to meet. iv. Jurisdiction to control discovery: Administrative bodies only have power to order/control discovery to the extent that the power is expressly stated in their empowering statutes (Canadian Pacific Airlines v. Canadian Air Line Pilots Assn)

v. Knight: officeholder-at-pleasure gets PF because of duty of the Crown to act with dignity, and K
required notice of reasons for dismissal and an opportunity to be heard

vi. Dairy Producers Co-op: where the decision is preliminary or not binding on a final decision, A is only
entitled to know the substance of the case against him, not full disclosure e. RIGHT TO MAKE WRITTEN SUBMISSIONS i. Nicholson: N's right to make submissions concerning his dismissal could be satisfied by oral or written submissions at the Board of Commissioner's discretion ii. Baker: a right to written submissions met the duty of fairness in the context of a request for relief from deportation on C & H grounds, and therefore no oral hearing was required f. RIGHT TO A HEARING WITHIN A REASONABLE TIME i. Blencoe: "the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied"

g. RIGHT TO AN ORAL HEARING i. Issues of credibility ALWAYS warrant an oral hearing (Singh, Suresh) 1. Baker: as there is no more automatic right to an oral hearing, the question is whether the
applicant received a "full and fair consideration" of their claim given the circumstances. Written submissions sufficed (no oral hearing), as the lack of an oral hearing for a woman applying for an exemption to immigration requirements was not found to violate procedural fairness. 2. Nicholson: written submissions sufficed (no oral hearing), as while a dismissed police officer should have been told why he was dismissed and should have been given the opportunity to respond, the Board had discretion as to whether it should be an oral or written hearing. 3. Khan v. University of Ottawa: K appealed a fail grade, which resulted in her failing the entire semester. In the exam she had extra time so in book 4 she supplemented her answers in book 1-3. No book 4 was found. A Committee met to decide on failures, and dismissed her without a hearing. Majority: a. Oral hearing i. Where (i) credibility is an issue (only her word to say she wrote a 4th book); and (ii) seriousness of consequences (loss of an academic year by a failing grade can delay, if not end, the career for which the student is studying) b. Content of oral hearing i. Should incl an opportunity to appear, make oral reps, and correct/contradict circumstantial evidence on which the decision would be based c. Dissent: Credibility was not an issue; consequences were not serious (there was no s 7 right at stake) and K could complete her education so long as she did one extra semester, which was not serious (less procedural fairness) h. RIGHT TO COUNSEL i. No common law absolute right to counsel, and the right's existence is fact-dependent; however, in many cases, there is a presumption in favour of the right to counsel and many statutes (ie: s.32 of the ATA) provide for it (but see Christie). The right to counsel under the Charter (s.10(b)) is limited to circumstances of "arrest or detention" ii. Christie: the SCC held that jurisprudence, the Constitution, and the rule of law "do not support the conclusion that there is a general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations." Therefore, post-Christie, the right to counsel in administrative proceedings must be determined on a case-by-case basis i. RIGHT TO CALL AND CROSS-EXAMINE WITNESSES i. The right to call and cross-examine witnesses is normally part of the right to an oral hearing, but the scope of the right is subject to control by the relevant tribunal.

ii. This right is now enshrined in some statutes, subject to some limitations...ie: s.38(2) of the ATA states
that the tribunal may limit cross-examination when satisfied that it has been sufficient to disclose all issues iii. Armstrong v. RCMP: issue whether Armstrong denied natural justice as a result of not having the opportunity to cross-examine the RCMP witness (the sergeant)? 1. To waive a right a party must be clear as to the consequences of his or her act. By failing to ask for the right to cross-examine, a party does not waive the right to cross-examine. 2. The right to cross-examine is not absolute (Innisfil v. Vespra). Where a statute is silent on the right to cross-examine, courts will generally be reluctant to impose the right unless natural justice so requires. 3. Factors militating towards a right to cross-examine include: a. where the evidence is contradictory or conflicting b. where there is an attack on a partys credibility

j. RIGHT TO WRITTEN REASONS FOR A DECISION i. Reasons are given to ensure that a person affected by a decision-making process is not given an
arbitrary decision. Obligation can be triggered in certain circumstances Baker ii. Situations where the obligation will be triggered 1. Where the decision is of significance to the individual 2. Where there is a statutory right of appeal 3. Where there is a right to judicial review 4. The empowering statute otherwise provides for it a. Policy in Baker: Reasons foster better decision making by ensuring that issues and reasoning are well articulated, more carefully thought out, and allow parties to decide better whether question should be appealed iii. Baker: Court accepted as reasons informal notes that had been prepared by one immigration officer for the benefit of another (proffered when Baker's counsel asked for reasons). iv. Content of Reasons: If the reasons requirement is to be meaningful, those reasons must at a minimum shed some light on the actual reasons of the decision-maker 1. Suresh: (1) Reasons must articulate and sustain the finding that individual will not be subject to torture. (2) Reasons must articulate why the individual is a danger to the security of Canada. (3) Reasons must come from the decision-maker (and not the subordinate official like in Baker. 2. Via Rail Canada Inc. v. National Transportation Agency: Wheelchair athletes traveled w/ VIA. Encountered significant obstacles wrt accessibility of VIAs services. A complaint was made to National Transportation Agency stating VIA wasnt relieved VIA from ensuring that passengers with disability can board and de-board its trains. a. RULE: Duty to give reasons is only fulfilled when the reasons provided are adequate b. Test for adequacy: Do the reasons provided reflect the purposes for which a duty to give reasons was imposed? Purposes are reflected when: i. The decision-maker sets out findings of fact and the evidence on which those findings are based. ii. The reasons address the major issues. iii. The reasoning process is set out & reflects the consideration of relevant factors. CHARTER & PROCEDURAL FAIRNESS: Fundamental Justice s 2(e) Bill of Rights & s. 7 of Charter Note that there is a difference between the Bill of Rights and the Charter: Bill of Rights Charter - Federal only - Federal, provincial, and territories - Applies to "persons" (ie: corps) and - Applies to "everyone"

V.

10

"individuals" - Property rights (s.1(a)) - Same reach as judicial review - Overrides legislation absent express intention - Quasi-constitutional document

- No property rights - Applies to "government" (different from JR) (s.32) - Overrides legislation always - Entrenched in the constitution

a. Bill of Rights, s.2(e): "Every law of Canada shall, unless it is expressly declared by an Act of the Parliamentshall be
construed or applied so as to notdeprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations" b. Charter, s.7: "Everyone has the right to life, liberty, and security of the person, and the right not to be deprived of it except in accordance with the principles of fundamental justice. 1. Remember that the Charter applies only to "government"must decide whether the body in question is fulfilling a government function in a way that isn't an issue with the Bill of Rights c. In sum, there are 2 sources of fundamental justice 1. Bill of Rights i. Subjects: federal institutions only; does not apply (1) provinces or provincial gov't agencies or (2) CBCA corporations ii. Quasi-Constitutional: Fed gov't can legislate expressly so that the Bill of Rights does not apply iii. Similar to judicial review: if JR achievable under CL, then you get JR under the Bill of Rights 2. Charter i. Subjects: federal, provincial and territorial governmental bodies. ii. Governing Question: is "governmental action" involved? Not at all like JR iii. Constitutional: all legislation must be in accordance with the Charter, unless saved by s.1 iv. Singh: at a minimum, Charter principles of fundamental justice are the same as principles of fundamental justice under Bill of Rights

d. PROCEDURAL FAIRNESS AND THE PRINCIPLES OF FUNDAMENTAL JUSTICE 1. Chiarelli v Canada: In assessing whether a procedure accords with fundamental justice it may be necessary to
balance the competing interests of the sate and the individual

2. For s.7 Procedural Fairness & Fundamental Justice to apply, complainants must cross the threshold test of
establishing that their "life, liberty, or security" interests are impugned by the relevant decision 3. If a complainant fails to pass the threshold question, procedural fairness may still be due, but they must succeed under common law (ie: administrative law principles, Baker) rather than s.7 4. If s. 7 right is engaged, Procedural Fairness comes into play by the means of fundamental justice, and legislation must conform to them in order to be lawful. 5. Singh/Suresh- Principles of Fundamental justice include procedural fairness i. Everyone in s. 7 includes every human being who is physically present in Canada, and the security interest must encompass freedom from the threat of physical punishment as well as freedom from such punishment itself. ii. Courts rely on c/l procedural fairness to interpret S.7 fundamental justice - Suresh Ct -- The principles of fundamental justice of which sec. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty applied Baker framework to assess the adequacy of procedure afforded to Suresh so basically, principles of fundamental justice become procedural fairness in this Charter context. 6. Bill of Rights i. Authorson v Canada: Disabled veteran challenged a provision of Act that barred any claim to interest on monies held by the Dept. Crown was collecting on his behalf while he was incompetent but when he became competent the Crown only paid over the principal. Crown was under a fiduciary duty to pay interest on veterans pension funds but it was extinguished by the statute. 1. A property claim a. Charter s 7 cannot help; does not protect property rights 2. BoR s 1(a) means he is entitled to due process of law if deprived of enjoyment of property rights

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a. Due process in the context of a legislative body means the decision maker
(Parliament) is bound only by self-imposed procedural (manner and form) restraints on its enactments (ie 3 readings in both houses and Royal assent) b. Courts will not impose additional requirements c. Normal Parliamentary procedure is all that is required for Parliament to take away indiv rights; no fair hearing is required 3. s 1(a) does NOT entitle a claimant to substantive due process, ie expropriation only with compensation

e. EXTENSION OF BAKER TO PROCEDURAL FAIRNESS: Duty to Disclose & Right to Reply, Duty to Give Reasons 1. Suresh: Ct upheld provision in Immigration Act that permitted Minister to deport non-citizens who were found
to be a danger to the security of Canada, and held S did not have right to an oral hearing, but did have the right to: i. Disclosure of materials on which the Minister would base her decision, including the memorandum from the immigration officer who initially reviewed Suresh's case. 1. Subject to privilege or other valid reasons for reduced disclosure, such as safeguarding confidential public security documents. a. Also Prichard v. Ontario- under c/l, priv allowed agency to withhold legal opinion, consistent with procedural fairness ii. Right to written reply to the claims set out in the memorandum, including claims relevant to the threat he posed to Canada and the risk of torture he would have if deported. iii. Reasons- Ct held that the Minister herself (and not a delegated officer) must provide responsive reasons that demonstrate both that the individual is a danger to Canada and that there are no substantial grounds to believe he would be subject to torture.

1. Substantive Review: Ct also noted Deportation to torture will generally violate the
principles of fundamental justice protected by s. 7 of the Charterunless exceptional circs. Reviewable on correctness, whereas other substantive findings (threat to national security, actual likelihood of torture) reviewable on deference. 2. Substantive Standard of Review:- While the Charter issue whether deportation to torture violates s. 7 was reviewable on a standard of correctness, the determinations of whether a refugee was also a threat to national security (thereby opening the door to deportation), and whether the refugee actually faced a substantial risk of torture if removed, were subject to maximum curial deference. iv. ANALYSIS: Baker criteria: 1. The nature of the decision somewhat resembles judicial proceedings, and is of a serious nature, it is also discretionary for the Minister, so this factor (the closeness of the administrative process to the judicial process) militates neither in favour of particularly strong, nor particularly weak, procedural safeguards. 2. The nature of the statutory scheme suggests the need for strong procedural safeguards, because the provision sets out no procedures, particularly for a right of appeal. 3. Importance of the Right: Deportation from Canada engages serious personal, financial, and emotional consequences, and thus the importance of the right affected militates in favour of heightened procedural protections. Further, because Suresh may be subjected to torture, this factor requires even more substantial protections. 4. The Minister must be allowed considerable discretion in evaluating future risk and security concerns, and is free under the terms of the statute to choose whatever procedures she wishes in making this decision, so the choice of procedures suggests a degree of deference to the Minister; however, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees. 2. Pritchard v. Ontario: Requirements of procedural fairness, which are a feature of the principles of fundamental justice, does not require disclosure of a privileged legal opinion given to a Minister

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f. ORAL HEARINGS - While deference to procedural choices became the norm for common law procedural fairness (ie:
written hearings in Nicholson and Baker), there is a countervailing tendency with the Charter and the Bill of Rights engaged (ie: Singh and Suresh) 1. Singh v. Canada: Minister determined certain refugees were not convention refugees. They were denied an appeal b/c the board determined on the material submitted that there were no reasonable grounds for believing that they could establish their claims. They claimed that the statutory scheme infringed Charter s 7 (life, liberty/ fundamental justice) b/c at no point in the process were they given a chance to be heard or to know the case against them. i. The Act precluded the CL duty of fairness 1. They could only succeed if Charter or Bill of Rights requires the court to override Parliaments decision to exclude procedural fairness. 2. The Charter allows you to attack the legislative scheme in place; the common law duty of fairness only allows you to attack the decision-making process ii. The refugee scheme violated the appellants right under the Charter s 7 1. Fundamental justice includes procedural fairness at a minimum [ie CL rights the minimum but more can be obtained ito Charter iii. Hearings based on written submissions may be satisfactory in some but not all cases; an oral 1. hearing is necessary where there is a serious issue of credibility iv. The deprivation wasn't saved under s.1 because issues of administrative efficiency and convenience can't override the PFJ. Note: since Singh, it has emerged that s.7 deprivations do not always require an oral hearing g. RIGHT TO STATE-FUNDED LEGAL COUNSEL 1. Christie: no requirement for state-funded legal counsel found in either the duty of procedural fairness or the rule of law in the administrative context. 2. s. 10(b) right to counsel is limited to situations of arrest & detention. s. 7 may require state provided counsel in limited situations. 3. New Brunswick v. G. (J.): Issue was whether s 7 of the Charter required that a mother be provided with counsel to resist an application by the Child Welfare authorities for renewal of an order placing her 3 children in the custody of the state. i. Security of the person protects both the psychological and physical integrity of the individual 1. For admin action to restrict security of the person, the impugned state action must have a serious and profound effect on the persons psychological integrity. Must be greater than ordinary stress or anxiety ii. A parent need not always be represented by counsel in order to ensure a fair custody hearing. 3 factors to determine if a party has a right to counsel: 1. Seriousness of the interests at stake (directly proportional): obviously serious 2. Complexity & adversarial nature of the proceedings (directly proportional): procedure to resist application included adducing evidence, cross-examining witnesses, expert testimony etc 3. Capacities of the individual (inversely proportional): intelligence, communication skills, composure, familiarity w/ the legal system iii. Where a decision impairs a s.7 "security of the person" right, the principles of fundamental justice may require the Crown to provide legal aid (for the parents in this case). h. UNREASONABLE STATE-CAUSED DELAY 1. While s.11(b) protects a person charged with an offence to be tried within a reasonable time, this is not incorporated under s.7. However, an element of procedural fairness is the concept of administrative delay, and Blencoe recognizes the possibility whereby psychological harm or stigma that is the direct result of statecaused delay could infringe the s.7 right to "security of the person" and result in an administrative stay of proceedings as a remedy. 2. Blencoe v. British Columbia: Sexual harassment complaint- political career over, fam. Had to move twice, finances depleted, 30. mo before hearing scheduled.

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i. BC Human Rights Commission was a "government organization" under s.32 of the Charter because
while it was an independent adjudicative body, it was operating pursuant to statutory authority and implementing gov't human rights policy. ii. No violation of the s.7 "liberty" interest, delay didn't affect any fundamental life choices or affect individual autonomy. Also, while "serious state-imposed psychological stress" can infringe the s.7 "security of the person" interest, here there was simply inadvertent delay due to incompetence, not a direct violation of psychological integrity 3. While there was no stay of proceedings here, it can be granted if significant prejudice results from unreasonable delay b/c: i. Prejudice to fairness of the hearing witness died, documents lost, ect ii. Abuse of process inordinate delay caused such significant psychological harm to the person or attached a stigma to their reputation that it brings the whole human rights system into disrepute (almost impossibly high threshold)

i. EX PARTE, IN CAMERA HEARINGS 1. Charkaoui v. Canada: Issuance of security certificates under the Immigration and Refugee Protection Act
authorize detention of foreign nationals and permanent residents suspected of terrorism, and review of the detention is conducted behind closed doors if the evidence can't be disclosed for reasons of national security. Therefore, ex parte and in camera hearings are held at the request of the Crown if the judge believes disclosure of evidence could undermine national security. i. Liberty persons subject to security certificates face detention pending deportation ii. Security of the person person's removal may be to a place where his or her life/freedom would be threatened. iii. It also violated the principles of fundamental justice because it denies the person named on the certificate a fair hearing, which includes a hearing before an independent and impartial tribunal who must decide on the facts and law, and also includes the right to know the case to meet and to have an opportunity to answer it. iv. Court found s.1 analysis didn't justify the procedure because the infringement didn't minimally impair the right at stake. Note: court left open the "Suresh exception" where exceptional circumstances may entitle Canada to deport a person to torture. VI. BIAS/IMPARTIALITY a. At c/l, principles of natural justice/fairness are encapsulated in two central ideas. i. right to be heard audi alteram partem (hear the other side) 1. fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to those parties (so basically notice and opportunity to respond). 2. heard by decider- The second requires the decision-maker to hear and listen to both sides of the case before making a decision. ii. right to an independent and impartial hearing nemo judex in sua caua debet esse (no one is fit to be judge in his own cause) 1. Independent 2. No bias 3. The first is that a decision-maker should neither judge her own cause nor have any interest in the outcome of a case before her. This is the rule against bias. b. BIAS Generally: i. No one shall be a judge in her own cause in the narrow sense this captures personal interests being bound up with the case, and deciding in accordance with those interests. ii. Test for Reasonable apprehension of bias: 1. Whether a reasonable, well-informed person having thought the matter through would conclude that an administrative decision-maker is sufficiently free of factors that could interfere with his or her ability to make impartial judgments. 2. The grounds for the apprehension of bias must be substantial. A real likelihood or probability of bias should be demonstrated. Mere suspicion of bias is insufficient for the test to be met. iii. Baker- HELD: The notes of Officer Lorenz demonstrate a reasonable apprehension of bias, as the well-informed member of the community would perceive bias when reading his written reasons. His

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notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. Lorenzs statements give impression that he may have been drawing conclusions based not on the evidence before him. iv. Re Sawyer and Ontario Racing Commision (Ont. CA 1979)- where counsel is connected w/one of parties to the hearing, reasonable apprehension of bias if counsel participates in drafting process c. Pecuniary Interest showing Bias: i. Energy Probe v. Canada: Test for bias depends on the nature of the tribunal: 1. Adjudicative tribunal = less tolerance for bias (higher standard) = mere possibility of pecuniary gain coming directly/indirectly from the decision results in disqualification 2. Administrative tribunal (advisory/regulatory body) = more tolerance for bias (lower standard) = pecuniary interest must be more immediate and certain and give rise to substantial grounds for apprehending lack of objectivity d. Antagonism during the hearing - Based on the way in which the hearing conducted. Manifests itself in: i. Denying procedural fairness (e.g. not being allowed to present ones case) ii. Behaviour of decision-maker including: 1. Unreasonably aggressive questioning 2. Unreasonably aggressive comments about testimony; Gooliah v. Canada 3. An attitude toward the issue being decided 4. Personal dislike of the claimant 5. Lack of sympathy w/ legislative objectives; Baker iii. Behaviour of other parties who have a specific link to decision making process (e.g. lawyers, etc.) iv. Balance to be struck tribunals controlling their proceedings vs needless antagonism e. Association between party and decision maker i. When looking at the association between the party and decision-maker, the following factors are important: 1. Nature and function of the Board (Marques) a. If the Board requires persons with expertise being appointed, it is expected that there will be some level of prior association with the parties. b. Mere professional r/ship is not enough (need something more direct) in this context 2. Nature of the relationship between the parties 3. Amount of time lapsed between the proceeding and the prior association ii. This ground of disqualification can also be characterized as a conflict of interest (Ont. Hydro v. Ont. Energy Board) f. Involvement of decision maker in earlier stage of process i. Where an agency is responsible not just for hearing cases but for investigating them and making decisions to proceed against someone, those involved may not have overlapping functions ii. Quebec Inc. v. Quebec (Regie des permis dalcool): Lawyers who investigate shd not also assist those who adjudicate- the roles of prosecutor and adjudicator can never be overlapped even if statutorily authorized 1. The Act authorizes employees of the Regie to participate in the investigation, the filing of complaints, the presentation of the case to the directors and the decision. Prosecuting counsel must in no circumstances be in a position to participate in the adjudication process. The functions of prosecutor and adjudicator cannot be exercised together in this manner. iii. Committee for Justice and Liberty v. National Energy Board: Application was made under the NEB Act for construction of a natural gas pipeline. The chairman of the board at the time of the application had been involved (as member of a Study Group) in discussions and planning for the applicant company. 1. Ct found that based on a reasonable person standard, because the Chairman was involved during the application process, he may be bias during the adjudicative stage. g. Attitudinal bias i. Imperial Oil v. QB (MOE): IO caused env. pollution so the Minister ordered it to prepare a decontamination measure study at its own expense. IO argued bias b/c the Minister was involved in prior decontamination work and was being sued by the present owners of the land. ii. The contextual nature of the duty of impartiality adjusts to reflect the context of a ADMs activities

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h.

and the nature of its functions: 1. Nature of the functions to be performed: a. The Minister is performing a mainly political role which involves his authority & duty to choose the best course of action in the public interest; he is not performing an adjudicative function; on the contrary he is performing functions of management. 2. Legislatures intention: a. legislation defines Ministers role as requiring him to give notice to the person, receive and review representations and info submitted by that person and give reasons to that person for his decision. 3. Nature of the personal interest: a. Any interest they may have had in recovering the costs of the proceedings was too remote and attenuated to give rise to a reasonable apprehension of bias; the only interests the Minister was representing were the public interest and the interest of the state in protecting the env/t. 4. HELD: Duty of impartiality applying to the Minister in this case is NOT equivalent to the impartiality required of a judge or adjudicative admin ADM Institutional bias: i. Wewaykum Indian Band v. Canada: In 1985, the Campbell River Band brought legal proceedings against another band and the Crown, claiming exclusive entitlement to reserves on Vancouver Island. Some year earlier Binnie J. was Associate Deputy Minister of Justice at the DOJ internal memoranda indicated that Binnie had received info concerning the Campbell River Bands claim and that he attended a meeting where the claim was discussed. The SCC (Binnie J. writing for a unanimous Court) dismissed the bands claim. The band alleged that Binnie J.s involvement gave rise to a reasonable apprehension of bias 1. The general rule is that the bias of one decision maker will taint the impartiality of other decision makers (Baker) so two stages - (i) Individual bias & (ii) Impute to other decision makers 2. Individual judicial bias a. A judges impartiality is presumed; training etc. b. Test for judicial bias: well informed RP + thought matter through + fact that judge presiding could est a reasonable apprehension of bias c. Application: no bias b/c his involvement was limited and supervisory, he was responsible for thousands of files at the relevant time, and long time ago 3. Institutional bias a. Exception to Baker-rule in the case of the SCC: no reasonable person informed of the decision-making process of this Court could conclude that 8 other judges who heard the appeals were biased or tainted; judges prepare independently, express indep opinions, decisions on who will prepare draft reasons. independence i. Multifunctionality 1. Perception by the user that a tribunal has the potential to act as both prosecutor and judge in the same matter. Generally, it has been held that overlapping functions are not a problem so long as sanctioned by statute enacted in conformity with the constitution and so long as the multifunctionality does not give rise to a reasonable apprehension of bias under a quasiconstitutional statute.

i. Mixing Fact-Finders, Counsel and Adjudicators = reasonable apprehension of bias + adjudicative

ii. Tribunals can seek advice of counsel Armstrong v. Canada (1994) iii. Bovbel v. Canada (Minister of Employment and Immigration) (1994)
1. Bd referred a draft of its written decision denying P was convention refugee to legal counsel who was not member of Bd and had not participated in hearing. Bd had reasons review policy submitted draft of reasons to legal advisors before issuing them to parties. Nothing wrong w/policy just requires submission of reasons prior to final form.

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2. Having come to a decision on what is essentially question of fact- whether claimant has wellfounded fear of persecution for a reasons that engages the convention refugee definition tribunal doesnt offend justice by taking advice re: legal matters in its reasons. No likely apprehension of bias.

iv. Khan v. College of Physicians and Surgeons of Ontario (Ontario Ct Appeals 1992) 1. Adjudicative Independence: Decision must be tribunal members if reasons presented for
the decision are not those of the decision-maker- real concerns about validity of the decision. Reasons for decision must be committee but can use outside assistance (ConsolidatedBathurst) volume and complexity of modern decision-making necessitates resort to outside sources- so long as interference w/ decisionmakers conscience (Tremblay). 2. No Reasonable apprehension of bias- if consultation-participation by non-member lawyer in decision. 3. Facts: Health Disciplines Act- members of committee cant participate in any prior investigation and cant communicate, except for counsel, and any legal advice from indepepdent advisor should be made known to parties so they can make submissions of law. Khan argues Committee breached procedural fairness by permitting counsel to play so significiant a rolereasonable apprehension of bias. College: counsel just reviews chairmans draft and assists chairman express views of committee revised draft went to whole committee after input from counsel. Nothing here that counsels involvement compromised independence or impartiality of committee just assisted in preparation of intermediate draft. 4. Also just because counsel giving advice doesnt make it legal advice and counsel expressly disclaimed that it was so ok within statute. VII. Independence a. Principle of judicial independence: complete liberty of individual judges to hear and decide cases b. Also depends on the Committee for Justice and Liberty GENERAL TEST: well informed RP + thought matter through + reasonable apprehension of bias. c. Independence has 2 aspects (R. v. Valente): i. Institutional independence the extent to which the governing statutory scheme (for a particular tribunal) renders the tribunal free from external control or influence ii. Individual independence as question of impartiality: the extent to which individual tribunal members are free to adjudicate w/o undue influence d. Independence is on spectrum: the more adjudicative, the more independence that is warranted; the more policy driven, the less independence involved e. If the relevant statute clearly authorizes the existence of a statutory scheme that does not meet appropriate standards of independence for the tribunal in question, there will be no remedy available unless those affected can rely on a constitutional or quasi-constitutional argument; Ocean Port v. BC f. Three objective conditions have been identified as necessary to guarantee judicial independence, found in R v. Valente. i. But Tribunals dont need to meet same degree of independence as courts do ii. Flexible inquiry depending on nature of tribunal, interests at stake, other indices of independence (e.g. oaths of office) g. R. v. Valente: Criteria for INSTITUTIONAL Judicial Independence i. security of tenure; requires a tenure that is secure against discretionary or arbitrary interference by the executive or other appointing authority ii. financial security; and requires that the right to salary & pension be established in law and not be subject to arbitrary interference by the executive in a manner that could affect judicial indep 1. it is preferential that judicial salaries be (i) fixed by the legislature rather than by the executive; and (ii) made a charge on the Consolidated Revenue Fund rather than requiring annual appropriation 2. BUT neither of these two factors should be regarded as essential iii. Administrative indep wrt decisions bearing directly on the exercise of its judicial functions requires that the tribunal be able to govern its own administration (eg which judges hear which cases)

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h. Security of tenure
i. Judges- ability of the government to remove a judge for such things as rendering decisions that do not meet the government's approval. This security of tenure is guaranteed for superior judges by the constitution, s. 99. 1. BNA - S. 99, on its terms, only protects the security of tenure of superior court judges. Moreover, ss. 96-100 do not apply to provincially appointed inferior courts, otherwise known as provincial courts. 2. Core characteristics of judicial independence include: security of tenure, financial security and administrative independence. 2 dimensions of judicial independence for financial and security: individual (i.e. of the judge) and institutional/collective (i.e. of the court or tribunal of which that judge is a member). Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997) ii. Admin - Appointment and removal is key in admin 1. Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch) (2001, SCC) a. If the legislation permits it, then legislation prevails look to enabling statute b. Ct held that the enshrined const protection of judicial independence could not be translated to the context of administrative decision-making bodies. In essence, while judicial independence exists to protect the judiciary from interference by the executive branch of government, administrative tribunals are not separate from the executive. Admin tribunals span the divide bet executive and judicial. Will of the legislature should prevail in determining how much independence any given tribunal should have c. Facts: RCMP investigated and prosecutes liquor control and licensing, suspends license of hotel. When the Liquor Appeal Board held a hearing de novo and confirmed a suspension issued by a senior inspector with the Liquor Control and Licensing Branch, Ocean Port argued that the Liquor Appeal Board lacked sufficient independence to render a fair hearingsince appt of its members: at the pleasure of the Minister by statute. BC Ct. says more security required for members, decision to suspend license resembled judicial decision. 2. 2747-3174 Quebec Inc. v. Quebec (Regie des permis dalcool) limited term of tenure ok so long as not serving at pleasure and not too short, dismissal for cause ok.

3. McKenzie v. Minister of Public Safety (2006)- distinguishes Ocean Port, residential tenancy
adjudicator- unwritten const guarantees of judicial independence since highly adjudicative function

i. Financial security
i. ss. 100 protect the financial security, respectively, of all three types of courts (superior, district, and county) but not provincial. ii. government will not alter their pay for arbitrary reasons such as discontent with decisions rendered. To accomplish this goal, judges are guaranteed a fixed salary under the constitution. iii. The second goal is a promise that the amount judges are paid will be sufficient to keep them from seeking alternative means of supplementing their income. iv. In admin, if you're just a part-time member, or it is an honorific appointment, then are the concerns about financial security the same? j. Institutional control i. Institutional control deals with the manner in which the affairs of the court are administered from budgetary allocations for buildings and equipment to the assignment of cases. ii. Making sure that judges are not put in compromising situations where they may choose to make

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decisions in order to protect their own employment and interests, rather than for the sake of rendering decisions solely on the basis of their legal judgment. k. Adjudicative independence i. Only the person who hears the case is allowed to decide it, from audi alteram partem principle (hear the other side) 1. independence from interference by other judges delicate in admin context b/c group needs to collaborate to further law/consistency of outcome 2. Agency members must write their own decisions (Ontario College of Pharmacists Ct. Appeals 1985)

ii. Consultation w/Wider Group ok w/law, not facts iii. Ellis-Don Ltd v. Ontario (Labour Relations Board) (2001) 1. Presumption of administrative regularity- no evidence that they discussed facts and final
decision on face was law and policy. Presumption cannot be overturned w/o an evidentiary foundation even though hardship in establishing evidentiary foundation given deliberative secrecy. 2. Deliberative secrecy is important to safeguard independence of administrative adjudicators even if it comes at price of more discovery. a. Prior to the hearing of the application for judicial review, the appellant obtained an order compelling the chair of the board, the vice-chair who presided over the panel, and the registrar of the board to give evidence with respect to the procedures implemented by the board in arriving at its final decision. This order was reversed on appeal based on a finding of statutory testimonial immunity. b. Without such protection, there could be a chilling effect on institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency. 3. Facts: Collective bargain agreement local electrical contracts forgot to put appellants name on document listing all employers for which it claimed rights. First draft of panels decision held abandonment of bargaining rights. Full bd. Meeting discussed draft found no abandonment.

iv. International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst (1990, SCC)

1. Facts: Ontario Labour Relations Board- full board meeting held to discuss draft reasons of 3member panel, even though some members didnt hear argumen. Downsides a. Fostering coherence should not compromise any panel member's capacity to decide in accordance with her conscience and opinions. i. Forum where such a consensus can be reached freely as a result of thoughtful discussion on the issues at hand. b. Ptys do not have the oppty to respond to all the arguments raised at the meeting. 2. Upheld bd meetings: a. Full board meetings allowed the members of a large board with a heavy case load to benefit from the acquired expertise of the collective. b. Board's mandate. Structure of the Labour Relations Board was conducive to tripartite exchanges in order to use its combined expertise to regulate labour relations in a prompt and final manner. i. as long as they're not talking about factual findings, there's actually nothing wrong with influencing a decision (influence as distinct from pressure); so if a member can be persuaded that their legal position is wrong, that is a good thing c. Privative clause made it even more incumbent on the board to take measures to avoid conflicting results. (privative= no review) d. Coherence is a valid goal to be fostered so that the outcome of disputes did not

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depend on the identity of the decision-maker. e. Safeguards i. Parties should be advised of any new evidence or grounds and given an opportunity to respond. ii. There were circumstantial guarantees present that the meeting in question was not about pressure no attendance was taken, etc.

v. Cf. Tremblay v. Quebec (Commission des affaires socials) (1992)- imposition of consultation by
member of bd who wasnt in panel cd be inappropriate constraint. Process was different than Consolidated b/c consultation w/others was effectively compulsory when contrary to previous decisions (increase appearance of lack of independence), few safeguards (attendance taken, hand votes, minutes keptsystematic pressures). President expressed his opinion to members of the quorum, inviting them to reconsider the decision, and then became a decision maker is hardly consistent with the rules of natural justicereasonable apprehension of bias. 1. Facts: initial decision draft by members of panel favorable, president of commission differed, submitted to plenary meeting of commission, commission split, president of commission issued final opinion under statute. l.

DELEGATION p. 35 long outline, p. 43 law school outline Substantive Review CL Substantive Review Charter & Agency Jurisdiction over the Charter Remedies

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