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TABLE OF CONTENTS
PROCEDURAL FAIRNESS
INTRODUCTION TO THE DOCTRINE OF PROCEDURAL FAIRNESS 5
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PROCEDURAL REVIEW
INTRODUCTION TO THE DOCTRINE OF PROCEDURAL FAIRNESS
Sources of Procedural Rights:
• Common law
• Statutes
• Regulations
• Agency practices and policies (LED)
• Canadian Bill of Rights
• Charter of Rights
(4) English common law “undid” the restrictions of Church Assembly in Ridge v. Baldwin (1964) and moved toward
recognition of a “duty of fairness”
Ridge v. Baldwin: Chief Constable was a public office-holder who could not be dismissed except for cause.
The House of Lords held that the Watch Committee [police board] could not exercise its power to dismiss lawfully
unless it had given the Chief Constable notice of the grounds for dismissal and an opportunity to be heard.
HL did away with the need to find a “superadded duty to act judicially” before NJ could apply.
Rather, the Watch Committee had a duty to act judicially because of the nature of the power being exercised.
Re H.K. 1967 (Q.B.) held, immigration authorities have a “duty to act fairly” in making decisions about individuals
(5) Expansion of Procedural Obligations: Canadian adoption of the “Duty of Fairness” in Nicholson (SCC 1979):
• A “duty of fairness” applies to dismissal of a police officer who SCC determined could only be dismissed for cause.
• Nicholson seemed to imply that the duty of fairness was a “half-way house” – something lesser than Natural Justice –
and that NJ would apply in some situations and a “duty of fairness” in others.
• Laskin cited from Bates v. Lord Hailsham [1972]: “in the sphere of the so-called quasi-judicial the rules of natural justice
run, and in the administrative or executive field, there is a general duty of fairness”
(6) Further development in 1980s towards the Modern Approach to Procedural Fairness gradually did away with the
need to distinguish between Natural Justice and a “duty of fairness” (unless statute law requires that the distinction be
made by use of the older classification terminology)
Martineau (No.2) (SCC 1980)
o Minority concurring opinion: “In general courts ought not to distinguish between Natural Justice and the duty
of fairness, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the
rules of natural justice, yields an unwieldy conceptual framework.”
Cardinal (SCC 1985)
o “This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying
in every public authority making an administrative decision which is not of a legislative nature and
which affects the rights, privileges and interests of an individual.
o ...denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a
reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing
must be regarded as an independent, unqualified right which finds its essential justification in the sense of
procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court
to deny that right and sense of justice on the basis of speculation as to what the result might have been had there
been a hearing.”
(7) SCC decision in Knight (1990) sets out basic elements of Modern Approach to determining when Procedural
Fairness applies:
Knight (SCC 1990) L’Heureux-Dube: ..not all administrative bodies are under a duty to act fairly. Over the years,
legislatures have transferred to administrative bodies some of the duties they have traditionally performed.
o Decisions of a legislative and general nature can be distinguished in this respect from acts of a more
administrative and specific nature, which do not entail such a duty ...
o The finality of the decision will also be a factor to consider. A decision of a preliminary nature will not in general
trigger the duty to act fairly, whereas a decision of a more final nature may have such an effect
Challenge to order under the Solicitors Act that abolished a fee tariff
Main ground for JR was that the rule-making body acted improperly in failing to engage in wider consultation among
those affected (practicing lawyers) before making the change to the tariff
Application was dismissed on ground that neither NJ or fairness applies to "the process of legislation, whether primary
or delegated”
CARDINAL (1985)
The extent to which procedural requirements are imposed in the prison setting must be approached w caution, but…
“there is, as a general CL principle, a duty of procedural fairness lying on every public authority making an
administrative dec which is not of a legislative nature & which affects the rights, privileges, or interests of an indv.”
Denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a
reviewing court that the hearing would likely have resulted in a different decision.
KNIGHT (1990)
L’Heureux-Dube: “… not all administrative bodies are under a duty to act fairly…Decisions of a legislative and general
nature can be distinguished in this respect from acts of a more administrative and specific nature….The finality of the
decision will also be a factor to consider. A decision of a preliminary nature will not in general trigger the duty to act
fairly, whereas a decision of a more final nature may have such an effect.”
NICHOLSON V HALDIMAND
Canadian adoption of the Duty of Fairness
A “duty of fairness” applies to dismissal of a police officer who SCC determined could only be dismissed for cause.
Seemed to imply that duty of fairness was a “half-way house” – something lesser than Natural Justice – and that NJ
would apply in some situations and a “duty of fairness” in others.
Quoted Bates v. Lord Hailsham [1972]: in the sphere of the so-called quasi-judicial the rules of natural justice run, and in
the administrative or executive field, there is a general duty of fairness”
DUNSMUIR (2008)
[79] Procedural fairness is a cornerstone of modern Canadian administrative law. Public decision makers are
required to act fairly in coming to decisions that affect the rights, privileges or interests of an individual. Thus stated the
principle is easy to grasp. It is not, however, always easy to apply.
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[90] From these foundational cases, procedural fairness has grown to become a central principle of Canadian
administrative law. Its overarching purpose is not difficult to discern: administrative decision makers, in the
exercise of public powers, should act fairly in coming to decisions that affect the interests of individuals.
[115] Duty of fairness may apply where a public employee is not protected by a contract of employment
o [116] Or when a duty of fairness flows by necessary implication from a statutory power governing the
employment relationship
Whether and what type of procedural requirements result from a particular statutory power will of course
depend on the specific wording at issue and will vary with the context (Knight, at p. 682)
o [117] In this case, appellant was a contractual employee of the respondent in addition to being a public office
holder. Section 20 of the Civil Service Act provided that, as a civil servant, he could only be dismissed in
accordance with the ordinary rules of contract.
o In these circumstances it was unnecessary to consider any public law duty of procedural fairness. The
respondent was fully w/i its rights to dismiss A with pay in lieu of notice without affording him a hearing…
o The appellant was protected by contract and was able to obtain contractual remedies in relation to his
dismissal. By imposing procedural fairness requirements…over and above its contractual obligations and
ordering the full “reinstatement” of the appellant, the adjudicator erred in his application of the duty of
fairness and his decision was therefore correctly struck down by the Court of Queen’s Bench.
MAVI
Minimal level of PF at common law was held to attach because the Crown was found to have a narrow discretion
to defer or structure debt payments based on the personal circumstances of the sponsor
PF in this context required notice & right to make submissions re personal circumstances, but no duty to give reasons
LED doctrine was also invoked successfully to support the procedural claim with the LE arising because of wording in
the undertakings signed by the sponsors at the Crown’s behest
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LIMITATIONS ON AND EXCEPTIONS TO APPLICATION OF PF
Duty of Fairness will apply less fully or not at all to:
1. Non-Final Decisions (Inspections, Recommendations, Inquiries)
2. Legislative and General Decisions
3. Emergency Doctrine
4. Policy Making and Broad Discretionary Powers
2. PF does not normally attach to other types of “legislative & general decisions” (Inuit Tapirisat). This likely includes
most types of regulation-making, at least when regulations (or subordinate legislation at issue) is “general” in nature.
3. But if a legislative decision can be said to be specifically targeted at a particular person, then the decision might be
considered legislative in form, but not in substance, and PF may attach. This at least seems to be the case in municipal
bylaw-making (Homex, LaFontaine).
4. On the other hand, just because a small, identifiable subset of the population is affected by a broad, policy-based
decision does not necessarily make it targeted, and thus not “legislative and general” in substance (Regulated Importers).
5. But if non-targeted dec overwhelmingly affects one person more than others, PF may attach (CPR, Catalyst Paper)
6. It is unclear how small the group or deliberate governmental action against group must be before otherwise
legislative & general decision might lose characterization & be subject to PF as “administrative dec” (CPR, LaFontaine).
7. There appears to be decreasing importance, at least with respect to municipal law-making, as to whether something
is “legislative” or not in answering the threshold question: CPR, LaFontaine. The legislative context nonetheless
affects the content question: CPR, LaFontaine.
9. In cases of “legislative and general” decision-making, it seems that opportunities to have notice and to comment are
more likely to come about b/c of express statutory provisions or governmental practices that provide for such processes.
10. In some cases, a government or agency practice of notice and consultation could potentially give rise to arguments that
those procedures must be followed (and can be imposed by courts in judicial review) based on “legitimate expectation” –
we will discuss this later.
11. The more final and determinative a decision, the greater the claim for PF. Yet, even preliminary decisions may attract PF.
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RE DAIRY PRODUCERS COOPERATIVE & SK HUMAN RIGHTS COMMISSION (1994 SKQB)
• Human Rights Commission appointed investigator to determine whether there was an adequate basis for appointing a
board of inquiry following allegation of sexual harassment
• Company wanted full details of complaint, but was not provided them (initially)
• Investigator reported findings that there was “probable cause” to believe harassment occurred
• The Commission attempted to “settle” the complaint but was unsuccessful
• In the settlement discussions, the company was provided with the full details of the complaint
• After settlement discussions failed, the Commission appointed a Board of Inquiry to formally adjudicate the complaint
• Company sought to have the investigator’s report and the appointment of the Board of Inquiry struck down based on
failure to disclose full details of the complaint
HRC Process:
Complaint
↓
Officer Investigation
↓
If “probable cause” – Commission attempts to settle
↓
If not settled, Board of Inquiry appointed to adjudicate complaint through quasi-judicial hearing
↓
Ruling by Board of Inquiry
Outcome
• Investigative effort is not intended to be like a judicial proceeding – it’s only preliminary
• HRC not obliged to follow all formal natural justice requirements at this stage
• However, procedural fairness requires that the party complained of be advised on the “substance of the complaint”
and “a fair summary of the relevant evidence”
• Opportunity to respond must also be given at this stage
• Process is analogous to a Prosecutor determining whether criminal charges are justified
• In agreeing to enter settlement process, co. waived its right to complain about Investigator’s process – clearly knew
substance of complaint against it.
Process:
• Inuit Tapirisat appealed CRTC decision to Cabinet
• The CRTC made a submission to Cabinet through the federal department of Communications
• Bell Canada also made a submission
• The Department summarized the positions of the parties and stated its opinion on disposition of the appeal
• The Inuit Tapirisat were not provided with any of this material, except for the Bell Canada submission
• After an unfavourable decision, the Inuit applied to Federal Court for a declaration that a hearing should have been
granted
• Government sought an order dismissing the action for “no reasonable cause of action”
SCC Held:
• Parliament has in s. 64(1) not burdened the executive branch with any standards or guidelines in the exercise of its
rate review function. Neither were procedural standards imposed or even implied.
• The executive branch cannot be deprived of the right to resort to its staff, to departmental personnel concerned with
the subject matter, and above all to the comments and advice of ministerial members of the Council who are by virtue
of their office concerned with the policy issues arising by reason of the petition whether those policies be economic,
political, commercial or of some other nature.
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• GIC power to vary or rescind CRTC ruling “of his motion” = “legislative action in its purest form”
• Although Cabinet once held oral hearings for appeals, modern government and complexity & size of Canadian society
makes this impractical
• Maxim “audi alteram partem…will not be applied in every case”
• the supervisory power of s. 64…is vested in members of the Cabinet in order to enable them to respond to the
political, economic and social concerns of the moment.
• there is no need for the Governor in Council to give reasons for his decision, to hold any kind of a hearing, or even to
acknowledge the receipt of a petition
• It is not the function of this Court…to decide whether Cabinet appeals are desirable or not.
SCC reasoning:
• Parliament established CRTC and set out procedures for its hearings
• Also allowed broad powers for Cabinet to intervene, on its own or when petitioned – recognizing political nature of
• Parliament did not require Cabinet to follow CRTC procedures
• Sheer breadth of Cabinet’s authority is evidence that Cabinet’s discretion “is complete”
• Government couldn’t function if Cabinet held to same procedural standards as CRTC
Law Reform:
Later amendments to the Broadcasting Act limited Cabinet’s discretion
• Is this a “legislative decision” to which the duty fairness does not apply?
• Is it a “general” or “policy” decision regarding who should pay for subdivision services?
• Is this a “public interest” issue?
• Or is it a decision that affects the rights, privileges & interests of a specific party?
• SCC said:
Bylaw decision was not fundamentally “legislative” in nature
Private property interests at stake
Decision was essentially a private dispute between the developer and municipality (inter partes)
audi alterum partem applies
LAFONTAINE (2014)
SCC in 5:4 decision said LaFontaine owed PF duty to consider applications in good faith, not act arbitrarily, and
provide reasons that justify its decision. No real discussion of LGD doctrine.
Facts: Jehovah’s Witness church looking for land on which to build in Village of LaFontaine, Quebec. Couldn’t find any land
that was zoned for church, so made offers to purchase subject to successful rezoning on 3 occasions. LaFontaine
concerned that rezoning would increase taxes for other residents due to non-tax status of church land, and turned down
rezoning application all 3 times (last two w/o providing reasons). Church argued violation of s.2 freedom of religion.
Facts: Vancouver changed Official Development Plan Bylaw that applied to railway lands owned by CPR (Arbutus
Corridor), limiting to “public thoroughfare for transportation.” Vancouver Charter imposed no statutory requirement
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to hold a public hearing before adopting an ODP bylaw, but did for other types of bylaws (e.g. zoning). Impact of bylaw on
CPR was significant – would freeze development and limit use of the land. Vancouver held a hearing, but CPR claimed it
was deficient
Facts: Ministerial decision changed the quota system for importation of hatching eggs & chicks without consulting the
importers. Substantially impacted the business of existing importers. They didn’t have “right to import”
Trial Judge: even if a “general” policy decision, the importers were a known, small group and could have been consulted
“Some sort of general notice…was surely required”
EMERGENCY DOCTRINE
• Outside of potentially “legislative” decisions, when will decisions be seen as general and policy-oriented, thereby not
attracting duty of fairness?
• Where impact is broad and diffuse, it is difficult to make case for procedural fairness
• Environmental decisions (Sea Shepherd – wolf kill; Sierra Club – timber cutting)
• School closure decisions (Vanderkloet, Bezaire)
• Marketing board decisions (Cdn. Association of Regulated Importers)
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LEGITIMATE EXPECTATIONS DOCTRINE
• Does the LED apply to decisions that fall below of the PF threshold? Or just to decisions above the PF threshold?
• What must a petitioner show/prove to benefit from LED?
• Where has it been successful?
• What type of remedy does the LED allow for?
1. Must take into account the promises or regular practices of administrative decision-makers, and
2. It will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack
on substantive promises without according significant procedural rights”. (Baker para 27)
5. A LE can arise based on past conduct (e.g. regular practices) or promises or representations by public officials.
1. The conduct or representation relied upon to establish a LE must be “clear, unambiguous, and unqualified”
2. It must also not be contrary to statute (i.e. the LE must not conflict with statutory duties or requirements).
Mount Sinai; Mavi
6. It appears that those who seek to invoke the LED may show, but need not necessarily show, that they were aware of
the conduct giving rise to the Legitimate Expectation. (Mt Sinai).
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decision of a public official an opportunity to make representations in circumstances in which there otherwise
(would) be no such opportunity.”
• This appears to limit LED to cases under the threshold to:
Pure applications
Legislative and general decisions (“LGD”)
• But Sopinka J. seemed to suggest otherwise shortly thereafter…
Held:
• Legitimate expectations doctrine does not apply to the creation of statutes by Parliament because to do so would be to
fetter legislative sovereignty;
• “It is not the place of the courts to interpose further procedural requirements in the legislative process”
• “Such expectations might be created by statements during an election campaign”
• LED also cannot attach to Ministers or Cabinet vis a vis the introduction of bills into Parliament because to do so would
be to fetter Parliament indirectly;
• Principle that LED cannot give rise to substantive rights is affirmed – LED where it applies can only affect procedural
entitlements
Contradiction?
Sopinka, J:
• the LED is “part of the rules of procedural fairness (which) do not apply to a body exercising purely legislative
functions.”
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• This appears to limit LED to cases over the threshold since: 1) “purely legislative functions” are under the threshold;
and 2) LED is said to be “part of the rules of procedural fairness”.
• This seems to contradict Old St. Boniface (even though it is cited in same paragraph).
QUESTIONS
• Would “parliamentary government be paralyzed” if LED could be applied to introduction of legislation? (CAP)
• SCC noted that “it is fundamental to our system of government that it is not bound by the undertakings of its
predecessor”. That would fetter democracy. Could there be a way to deal with this?
• What consequences would have resulted from requiring Canada to comply with the notice requirement?
• If LED has no relevance to “legislative and general” decisions, when will it apply?
• What do you think about the notion that LED can never apply to substantive outcomes?
Binnie J.’s decision (in obiter and speaking only for himself and McLachlin J) provides some guidance about two matters:
1. The requirements that must be met in establishing the existence of a legitimate expectation:
the conduct or promise relied on must be “clear, unambiguous and unqualified” and must not conflict with statute;
the applicant who seeks to rely on the LED may show, but does not necessarily have to show, that he/she was aware of such
conduct or that the conduct or promise was actually relied on by the applicant with detrimental results
Issues:
• Do participatory rights & procedural fairness attach to debt collection by the Crown in this situation?
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• Does the wording of the undertakings create a legitimate expectation that the sponsor has a right to be heard
concerning her or his personal circumstances and ability to pay?
• Does government have an obligation to notify sponsors about social assistance claims before large debts accrue?
• Or is it the sponsors’ duty to keep track of the person(s) sponsored?
SCC Held:
• a minimal level of PF at common law was held to attach because the Crown was found to have a narrow discretion to
defer or structure debt payments based on the personal circumstances of the sponsor;
• PF in this context required notice and a right to make submissions regarding personal circumstances, but no duty to
give reasons;
• LED doctrine was also invoked successfully to support the procedural claim with the LE arising because of
wording in the undertakings signed by the sponsors at the Crown’s behest
SCC Held: (see paras.69-75)
• It would be ironic for gov’t to insist that sponsors live up to their undertakings, while gov’t walks away from its
undertakings.
• “Given the legitimate expectations created by the wording of these undertakings I do not think it open to the
bureaucracy to proceed without notice and without permitting sponsors to make a case for deferral or other
modification of enforcement procedures.”
• “There is no hearing and no appeal procedure but there is a legitimate expectation that the government will consider
relevant circumstances in making its enforcement decision and a duty of procedural fairness to do so.”
• “However, the wording of the government’s representations in the undertaking are sufficiently vague to leave the
government’s choice of procedure very broad.”
• “Clearly no promises are made of a positive outcome from the sponsors’ point of view.”
• Does Mavi resolve the question of whether LED applies above or below PF threshold? (the Old St. Boniface v. Re Canada
Assistance Plan inconsistency?)
• Without directly addressing this point, Mavi may resolve it partly since LED was applied in Mavi over the PF
threshold.
AGRAIRA V CANADA
What differences do you see between the Charter and the Canadian Bill of Rights?
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CHARTER SS. 7, 1, 52
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or effect.
• What is the connection between common law duties of procedural fairness and the “principles of fundamental justice”
in section 7 of the Charter?
• Does the Baker analysis apply? Is it relevant?
• What is the scope of section 7? When will it provide procedural fairness rights?
• Can s.7 give rise to a right to an oral hearing in the administrative context?
2. Every law of Canada shall, unless it is expressly declared by an Act of Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize
the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular,
no law of Canada shall be construed or applied so as to…
(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is
denied counsel, protection against self-crimination or other constitutional safeguards;
(e) deprive a person of the right to a fair hearing in accordance to the principles of fundamental justice for the
determination of his rights and obligations;
• It was estimated that the lost interest might be as much as $600 million to $5.5 billion dollars (25,000 – 35,000
veterans)
• The veterans sued claiming that the statutory bar violated the Canadian Bill of Rights Act sections 1(a) and 2(e)…
• By the way, the Ontario Superior Court and Court of Appeal agreed with the veterans
Authorson argued:
RE: Section 1(a)
1. No procedural rights were accorded to him prior to the passage of the statutory bar by Parliament;
2. No procedural rights were accorded to him before the statutory bar was applied to him;
3. “Due process” can be applied substantively and it protects him from governmental expropriations of his property
without compensation.
RE: Section 2(e)
4. The statutory bar was a “determination” of Authorson’s “rights” and therefore he should have had a “fair hearing”
before Parliament expropriated his interest in the pension funds
Re argument 1 – alleged breach of CBA s. 1(a) because Parliament had accorded no procedural rights prior to passage
of the statutory bar:
SCC held: there is no right to be heard prior to the passage of a statute; s.1(a) does not accord “pre-legislative”
procedural rights
• a key limit on CBR s.1(a) as established in the jurisprudence is that this section only “declares and recognizes rights
that existed in 1960 when the CBR came into force (i.e. only protects rights of a kind that were recognized in the law
in 1960)
– in 1960 (and now) there were no PF rights attached to the passage of statutes by Parliament (see para 33 of extract)
Re argument 2 – alleged breach of CBR s.1(a) because A had no PF prior to the time the statutory bar was applied to
his case
• SCC held that in this case, there was no discretionary application of a legislative provision in an individual instance
but rather a non-discretionary application of law to incontestable facts – no procedural protections arise in such a case;
• CBR s.1(a) does provide an individual with procedural protections when property rights are subject to deprivation by
the government under a law that requires the exercise of a discretion or judgment in specific factual contexts by a court,
tribunal or similar body BUT that is not the case here;
• CBR s.1(a) does not provide procedural protections when government through legislation completely eliminates all
such benefits for all possible claimants
Examples of how s.1(a) could be used legitimately:
• To guarantee fair procedures if a veteran was being deprived of a disability pension on the basis that he/she was
not disabled
not injured in the course of employment in the armed forces
Analogy of circumstance where not legitimate:
• Taxpayer cannot use s.1(a) when the tax rates change for his/her income level
Re argument 3: “due process” can be applied substantively and it protects A from governmental expropriations of his
property without compensation
• This claim fails because no such right existed in 1960;
• Our legal system has always recognized the right of the legislature to pass legislation to expropriate property without
compensation as long as it does so clearly enough.
• CBR does not protect against expropriation of property through the passage of clear and unambiguous legislation as
was the case here.
• SCC also notes the court’s reluctance to use s.1(a) substantively and cites the Lochner era in the US as one reason for
this 21
a 40 year period in American legal history (1897 - 1937) in which the Supreme Court of the United States tended to strike
down laws held to be infringing on economic liberty or private contract rights
Seen as highly conservative judicial activism
Re argument 4: that CBR s.2(e) applies because the statutory bar is a “determination” of A’s “rights” and therefore
entitled him to a “fair hearing” before Parliament expropriated his interest in the pension funds
• SCC held that s.2(e) does not apply to Parliament when legislating;
• It only applies in the context of proceedings before a tribunal or administrative body that determines individual rights
and obligations;
• All of s.2 rights are legal rights in the context of, or prior to, a hearing before a court, tribunal or similar body.
Conclusion:
• Illustrates doctrine on quasi-constitutional procedural entitlements (i.e. Bill of Rights)
• Confirms unassailability of primary legislation respecting both ss.1(a) and 2(e)
• Distinguishes between “legislative” and “individualized” decisions
• Confirms s.1(a)’s PFJ is procedural and may be substantive, but neither are applicable here
• At the time Singh was decided the Immigration Act established the following three-stage process by which claims for
refugee status were determined:
Immigration Officer Stage
↓
Refugee Status Advisory Committee
↓
Immigration Appeal Board
↓
Federal Court of Appeal (JR under s.28)
(2) Refugee Status Advisory Committee stage [RSAC also exercised Minister’s decision-making authority under a
delegated power]
• RSAC reviews claim + transcript
• No further info was received from or given to the claimant
• RSAC could rely on general policies/knowledge of world events without advising claimant about these matters and
without hearing from him/her about them
• RSAC decides if claimant is or is not a refugee and advises “the Minister” accordingly
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• Minister had lawfully delegated his/her decision-making power to the Registrar of RSAC, so in effect it seems RSAC
decision essentially becomes the Minister’s decision
Facts:
• Appellants were in Canada, and claimed refugee status
• They were examined under oath, then turned down by the RSAC
• Appealed to IAB, but were not granted oral hearing because IAB decided based on written submissions that there
were “no reasonable grounds for believing they could establish their claims” to refugee status
• They then sought judicial review at the Federal Court of Appeal
Issues:
• Appellants challenged fairness of the Act itself, not how it was applied to them
• It’s not that the IAB treated them incorrectly, but the process does not provide for fair opportunity to be heard
• Issue then becomes whether Parliament had authority to exclude procedural fairness to refugee claimants in their
position
• Are the Appellants entitled to protection of s.7 of the Charter?
• Does s.2(e) of the Bill of Rights apply? (If so, what remedy?)
• This was the first case to consider these issues under the Charter
Held:
• Process was not consistent with principles of fundamental justice
• But Court was split on why – 3 said Charter issue, 3 said Bill of Rights
Per Wilson, J: (Charter)
• “Security of the person” is at issue, even if there is a chance he will not be deported – i.e. security needs to be certain
• At this stage of the hearing process; refugee claimants cannot assert any right to remain in Canada
• Case law under Bill of Rights maintained distinction between rights and privilege; Immigration is a privilege, therefore
CBR doesn’t protect them
• This outcome is not acceptable under the Charter
Held:
Per Wilson, J: (Charter)
• Fundamental justice requires oral hearing where serious issue of credibility is involved
• Fundamental justice also requires adequate opportunity to:
Know the case you have to meet
State your own case
Quasi-judicial process cannot consider material “outside the record” and not made available to the refugee claimant (e.g. gov’t
info on world affairs), except where privileged
Is Immigration Act process saved under s.1 of Charter?
Some countries didn’t allow for refugee status appeals at all
But onus on Minister to justify
Held:
Per Beetz, J: (Bill of Rights)
• Agrees with outcome
• But no need to look to s.7 of Charter
• Charter guarantees existing rights and freedoms (s.26)
• S.2(e) of CBR applies broadly to “rights and obligations” and requires “fair hearing” in accordance with fundamental
justice
• So, these three judges agree on result and outcome, but find it is required by the Cdn. Bill of Rights rather than the
Charter. 23
Remedy:
• Decisions of IAB were set aside, and determination of refugee status remanded back to IAB for decision
• Why not strike down the Immigration Act provisions?
Facts:
• Very poor parent who stood to lose custody of children could not get legal aid and could not pay for counsel – denied
legal aid.
• Minister of Health and Community Services was granted custody of the appellant's three children for a 6 month period
and sought a 6 month extension of the original custody order.
Issues:
• If the proceedings had taken place without the parent being represented by counsel, would this have violated Charter
section 7?
• Does s.7 require state-funding of counsel in such circumstances?
Outcome:
• YES. The state has a constitutional obligation to provide the appellant with state-funded counsel in the particular
circumstances of this case.
Charter Analysis:
1. The “threshold” question: Is “life, liberty, security of the person” at stake?
2. Is the restriction on the s.7 interest in accordance with PFJ?
3. Is the failure to provide state-funded counsel in this case saved by s.1 of the Charter?
3. Is the failure to provide state-funded counsel in this case saved by s.1 of the Charter?
• NO.
• Section 7 violations are not easily saved by s. 1.
• Section 1 may…come to the rescue…only in cases arising out of exceptional conditions, such as natural disasters, the
outbreak of war, epidemics, and the like.
• S.7 rights are very significant and cannot ordinarily be overridden by competing social interests.
• Rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a
reasonable limit demonstrably justified in a free and democratic society. 24
Remedy:
• There are only two possible remedies a judge can order under s. 24(1) to avoid a prospective s. 7 breach in
circumstances where the absence of counsel for one of the parties would result in an unfair hearing:
1. an order that the government provide the unrepresented party with state-funded counsel, or
2. a stay of proceedings.
• A stay of proceedings is clearly inappropriate in this case, as it would result in the return of the
children to the appellant’s custody.
SCC held:
• Immigration Act, s.53(1)(b) is constitutional, but:
• Canada’s interest in combating terrorism must be balanced against the refugee’s interest in not being deported to
torture
• Torture is inconsistent with fundamental justice
• Refugees must be provided with an opportunity to respond in writing to the case presented to the Minister, and to
challenge the Minister’s information
• These procedural protections apply where the refugee has met the threshold of establishing a prima facie case that
there may be a risk of torture upon deportation
• Remanded back to Minister for new deportation hearing
• Suresh not entitled to “a full oral hearing of a complete judicial process” but to more that what s.53(1)(b) gave, which
was nothing.
• Entitled to know the case against him and respond:
Notice of proceedings
Disclosure of everything relied upon
Written submissions on danger analysis, likelihood of torture, including foreign assurances.
• Entitled to responsive reasons:
Reasons must come from Minister and be responsive. They “must articulate and rationally sustain” decision. 25
CHARKAOUI V CANADA (SCC 2007)
Facts:
• Immigration and Refugee Protection Act enacted after Sept. 11, 2001 events, repealing Immigration Act.
• New system removed permanent residents (PR) or foreign nationals (FN) on grounds relating to terrorism.
• Scheme permits removal on the basis of confidential information (i.e., not disclosed to named person)
• Under s.77, Ministers sign a certificate of inadmissibility (“Security certificate” or SC) declaring that a PR or FN is
security risk and thus inadmissible to enter or stay.
Referral of certificate
77. (1) The Minister and the Minister of Citizenship and Immigration shall sign a certificate stating that a permanent resident
or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or
organized criminality, and shall refer the certificate to the Federal Court.
Filing of evidence and summary
(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence on which the
certificate is based, and a summary of information and other evidence that enables the person who is named in the certificate
to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion,
would be injurious to national security or endanger the safety of any person if disclosed.
Effect of referral
(3) Once the certificate is referred, no proceeding under this Act respecting the person who is named in the certificate — other
than proceedings relating to sections 82 to 82.3, 112 and 115 — may be commenced or continued until the judge determines
whether the certificate is reasonable.
Determination
78. The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that
it is not.
Appeal
79. An appeal from the determination may be made to the Federal Court of Appeal only if the judge certifies that a serious
question of general importance is involved and states the question. However, no appeal may be made from an interlocutory
decision in the proceeding.
Effect of certificate
80. A certificate that is determined to be reasonable is conclusive proof that the person named in it is inadmissible and is a
removal order that is in force without it being necessary to hold or continue an examination or admissibility hearing.
Facts con’t
• Ministers issued security certificates against Charkaoui (permanent resident) and Harkat and Almrei (Convention
Refugees) deeming them to be “threats to national security”
• All three were detained pending completion of the proceedings for their removal from Canada
• Charkaoui, Harkat and Almrei alleged that the “reasonableness review process” (s. 80 or IRPA) amounted to a
violation of s. 7 of the Charter – the key problem was the “secrecy” aspects of the reasonableness review proceedings
26
– If the Security Certificate is determined to be reasonable by the judge, there is no appeal and no further
judicial review.
– If the Security Certificate is held to be “reasonable,” then for both a PR and FN the Security Certificate turns
into a removal/deportation order that cannot be appealed.
– Often named persons stay in detention since they are not deported due to risk of torture.
– What happened in this case? …
Charkaoui Harkat Almrei
Type Permanent Resident Foreign National / Conv. Foreign National / Conv. Refugee
Refugee
Released In 2005 with house In 2006 with house arrest Released in 2009 with conditions
arrest conditions conditions and subject to
In 2009 through FCJ for deportation to Algeria. In
insufficient evidence 2009 conditions lessened.
Hearing? yes
27
On facts and law? No – facts limited Judge cannot gather evidence and must rely on named person, but the na
does not know full case against and is not present at hearing
Know the case to meet No – lack of disclosure Named person does not know full case against and is not present at heari
and answer it?
• No.
• Scheme does not utilize the least intrusive measures.
• Court considers previous Canadian and current western democratic substitutes for balancing security needs with fair
hearing principles.
E.g. could have appointed a special security-cleared lawyer to represent Charkaoui in the hearing process, rather than have a
judge hearing summary of secret facts and then determining the legitimacy of the SC
Issues:
1. Does Charter apply to operation of Human Rights Commission?
2. Does s.7 of Charter provide protection against unreasonable delay in a tribunal hearing? I.e. do “liberty” and “security
of the person” entail rights to a hearing within a reasonable amount of time?
3. If not, what common law principles of procedural fairness apply?
4. If his rights were violated, was the stay of proceedings ordered by the BC Court of Appeal an appropriate remedy?
Issue #2: Can section 7 give protection against undue delay in administrative tribunal hearings?
• Majority considered whether s.7 interests (liberty or security of the person) were triggered in the Blencoe case and
held that they were not;
• S.7 can apply outside of criminal law where “liberty” and “security of the person” is truly affected.
• “Liberty” means more than freedom from physical restraint; but must establish state interference with “fundamental
personal choices”. Does not apply here.
• “Security of the person” protects “psychological integrity” of individual, but psychological harm must result from the
actions of the state and it must be serious
• There must be strong causal connection between the individual’s harm and state actions. Here, his psychological
stress is due to the allegations against him and being removed from Cabinet – not by delay in hearing.
Charter, s.11(b):
Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
– Held: BC Court of Appeal erred in applying this outside of criminal law context.
Meaning of “Liberty”
• freedom from physical restraint (imprisonment, incarceration, detention) e.g. Charkaoui – detention by the state
triggers s.7
• “liberty” also protects some narrow realm of “personal autonomy” – freedom to make decisions that are of
fundamental importance to the individual (“essential life choices”) (discussed in Blencoe)
• making decisions about medical treatment for children (Re B., cited in Blencoe)
• making decisions about where to reside (Godbout, cited in Blencoe)
Psychological Integrity
New Brunswick Min of Health and Community Services:
• the state action at issue must have a serious and profound effect on psychological integrity when viewed objectively
(i.e. must ask: would the state action at issue have a serious and profound effect on a person of reasonable
sensitivity?)
• the stress or anxiety imposed by the state action must be greater than ordinary stress or anxiety, but need not reach
the level of nervous shock; such a level may be found where the state action causes serious distress, stigma and
represents a gross intrusion on a private and intimate sphere (e.g. child protection hearings)
Blencoe:
30
• the psychological harm alleged to trigger the s.7 security of the person guarantee must be caused by the actions of the
state [sufficient causal connection is required] and must be very serious in kind and degree as measured by an
objective standard
• NB Min of Health and Community Services : PFJ = “fair hearing” – opportunity to present one’s case effectively – may
require a right to be represented by legal counsel if the hearing could not be fair without counsel;
to determine if counsel rights are needed, consider three factors: 1) seriousness of what’s at stake, 2) complexity of the matter,
and 3) capacity of individual to represent himself/herself
• Charkaoui: the procedures required to meet the demands of PFJ depend on the context;
• the question is whether the process is fundamentally unfair or flawed;
• a national security context can be taken into account in deciding whether a process is fundamentally unfair or flawed:
for example, a national security context could mean that the “usual” form of procedures may have to be modified somewhat or
replaced by adequate substitutes but, ultimately, the process must meet the requirements of the PFJ;
if the PFJ are not respected, any state justification of using procedures that do not meet the requirements of PFJ must be dealt
with under the s.1 “reasonable limits” analysis and not under s.7;
security concerns cannot be used to excuse procedures that do not conform to PFJ at the s.7 stage of analysis
Charter Section 1 re Justification of Breaches of PFJ
• At the s.1 stage the state is faced with attempting to justify procedures that have been found to be contrary to the
principles of fundamental justice;
the Oakes test applies (e.g. Charkaoui, New Brunswick Minister of Health and Community Services)
but denials of procedural PFJ will be very difficult to justify (New Brunswick Minister of Health and Community Services;
Charkaoui);
administrative inconvenience will not be enough (Singh)
NOTICE
• Without notice, none of the other procedural rights can be exercised. Where a person is “over the PF threshold” and
has some kind of right to be heard in the d/making process, he/she needs to have adequate and reasonable notice
that a decision is going to be made in order to be able to exercise effectively the right to be heard.
• The kind of notice required will depend on the overall context and where the decision falls on the procedural fairness
spectrum – e.g. if “high end” PF is required, more elaborate notice will be needed.
• Generally speaking, the person who has a right to be heard needs to know at least:
what the proceedings are about and their possible consequences (e.g. penalties, sanctions – what’s at stake?)
when and where he/she will have a chance to “be heard”.
• In some cases, depending on the context and in at least a preliminary way, the person also needs to know some
aspects of “the case against” him/her so that he/she can adequately prepare to respond to that case and to make
his/her own case.
• 4 issues with respect to “notice” are typically identified:
(i) form
(ii) manner of service
(iii) time
(iv) content
• Keep in mind that in some cases, the relevant statute or regulations will provide for how and when notice is to occur
and what kind of information must be provided.
FORM OF NOTICE
Written, electronic, or oral?
• Written notice is more common, safest, and probably required where important interests at issue;
• Electronic or oral may suffice in some cases;
• If there is ACTUAL notice, and the person entitled to be heard is not prejudiced, the court is not likely to grant judicial
review merely because of a defect in form.
• Recall Webb and Ontario Housing Corporation case (p.133 of text)
Service:
• Personal service (handed to the party) is best if serious individual interests are at stake.
• Notice by mail will often be O.K. (and perhaps by fax or email) but the agency giving notice must be wary of whether
or not the notice is actually received in time or at all.
• Public notice may suffice in some cases where many people will be affected in more or less similar ways. For example,
methods such as newspapers ads are often used (e.g. CRTC hearings, environmental impact hearings).
• However, in using general notices, care must be taken to ensure that the method used is reasonably likely to come to
the attention of those who will be affected.
Timing:
• The general rule is that the notice must be given long enough before the hearing to give the party time both to decide
whether to participate, and then to prepare effectively to participate.
• The length of time required will vary depending on the nature of the interests and issues – how complicated they are
and the seriousness of what’s at stake.
• more complex, more serious matters → more time needed to prepare as a general rule
• Note: a common remedy for insufficient notice time, is to adjourn the proceedings and give the party further time to
prepare.
Content:
• In some respects, this is the more difficult question because the content required is so variable, depending on all the
circumstances.
• The general rule is simply that the notice must give enough information to enable a party to prepare to respond
effectively. Hence, the amount of information required will vary depending on the context and where the decision
falls on the PF spectrum, and also on the complexity of the issues and the nature of the proceeding that will be held.
• It is clear that the notice must give enough information so that the person knows “what’s at stake - what kind of
“jeopardy” he or she faces as a result of the decision and why.
32
• However, the courts will also often take a common sense approach in this respect, taking into account what a
reasonable person in the position of the party be expected to know and understand from the information he/she was
given in the notice.
Example:
• Is a newspaper ad stating that power
lines are proposed for “southwestern
Ontario” adequate notice to those whose
property interests may be affected?
• Is there enough information for people to know that their interests may be affected by a decision?
• Be sure to check the statutory scheme to see if it has any particular notice requirements, and if they have been met.
ADOPTION ACT
Birth fathers' registry
10 (1) A birth father may, in accordance with the regulations, register on the birth fathers' registry to receive notice
of a proposed adoption.
(2) Notice to a person registered on the birth fathers' registry is properly given if it is sent, in accordance with the
regulations, to the address recorded in the registry.
Dispensing with notice of proposed adoption
11 (1) On application, the court may dispense with notice of a proposed adoption to a birth father if it is satisfied
(a) that it is in the child's best interests to do so, or
(b) that the circumstances justify dispensing with the notice.
(2) An application under this section may be joined with an application for an adoption order.
ATA
Notice
• ATA has provisions for notice for the tribunals that it applies to.
• See sections 19 – 21
• To determine whether these apply you must look to the tribunal’s enabling legislation
See definition of “tribunal” in s.1 of ATA
Then see, for example,
Human Rights Code, s.32
Workers Compensation Act, s.245.1
Petroleum and Natural Gas Act, s.148 (Surface Rights Board)
33
Environmental Management Act, s.93 (Environmental Appeal Board)
DISCLOSURE / DISCOVERY
Summary of pre-hearing disclosure:
• A person who has hearing rights needs notice and a reasonable level of information before the hearing.
• If the case is at the “whole enchilada” end of the PF spectrum, something akin to pre-trial discovery processes may
arguably be required to enable the person to know “the case against” and to help him/her prepare for the
administrative process (e.g. professional discipline processes).
• Many tribunals that hold full adjudicative hearings recognize the value of discovery and have established rule
procedures to provide for it. However, not all tribunals have jurisdiction to force parties to participate in pre-hearing
discovery processes.
• See pp.26-31 of Environmental Appeal Board’s Procedure Manual.
Practical Considerations:
• As a practical matter, if you want to challenge a decision, how will you know what facts were “on the face of the
record” before the decision-maker”?
• If the decision in question is one for which a hearing was held, you will know what evidence was entered at the
hearing.
• But what about pre-hearing? Or what about decisions made without a hearing?
• In addition to asking your client for all the documentation she/he has, another possibility many lawyers use is Access
to Information legislation (in BC – the Freedom of Information and Protection of Privacy Act;
• See Part 2 of FOIPPA for info rights and exemptions from disclosure
• Section 4 – right to information
Definition of "record”
Definition of "public body”
• Sections 12-22.1 – exceptions to disclosure requirements
• If dealing with a federal decision-maker, you would look to the Access to Information Act and its
regulations.
• Pre-hearing discovery differs from “notice” in that it would typically arise after the “initial” notice has been given, but
before the actual hearing of the matter.
• It refers to processes similar to the discovery processes followed in the civil courts where the Rules of Court provide
for elaborate and extensive pre-trial discovery processes by which each party can find out about the other party’s
case.
• The question in administrative law is to what extent, if any, should similar kinds of rights apply to administrative
decision-making processes?
• Why are the processes different?
SCC Rules:
• See Part 7 — Procedures For Ascertaining Facts
Rule 7-1 — Discovery and Inspection of Documents
Rule 7-2 — Examinations for Discovery
Rule 1-1 — Interpretation
"action" means a proceeding started by a notice of civil claim (s.1)
35
• “While the Stinchcombe disclosure standard is inapplicable to an administrative context,…procedural fairness generally
requires that the decision-maker disclose the information relied upon. The individual must know the case he has to meet.
• If the decision-maker fails to provide sufficient information, his decision is void for lack of jurisdiction. In order to assure
the fairness of decisions concerning inmates, s. 27(1) of the CCRA requires that CSC give the inmate, at a reasonable
period before the decision is to be taken, “all the information to be considered in the taking of the decision or a summary
of that information”.
Held:
• Student threatened with loss of academic year is entitled to “high standard of justice”
• Consequences are serious:
Will delay and may end career
May render previous academic years valueless
May foreclose further university education
• Her credibility was a critical issue
36
• Ms. Khan should have been given opportunity to rebut the factors the committee relied on in its decision
• Oral hearing should have been granted
• But not all academic appeals will require oral hearings
Half-way House?
• How could a tribunal or other decision-maker address confidentiality and privacy concerns but still be relatively
open?
• If there are special concerns about confidentiality there are some “half-way houses” between full publicity and in
camera proceedings such as:
publication bans
taking only some testimony in private
ATA:
• Note that section 41 of the Administrative Tribunals Act, provides that oral hearings must be open to the public but
section 42 provides that the tribunal may direct all or part of the evidence to be heard or received in camera.
• Remember: These sections only apply if they have been specifically declared to apply by the enabling statute of the
tribunal.
RIGHT TO COUNSEL
• In most hearings, a right to be represented by counsel or by an agent is assumed and sometimes the statute itself will
require it expressly.
• See section 32 of the BC Administrative Tribunals Act
• Contrast this to section 6 of the Alberta Administrative Procedures and Jurisdiction Act
• The basic question is when are lawyers necessary in order to give a person an adequate opportunity to be heard and
to make his/her case?
• To answer this, consider first the advantages/disadvantages of legal representation.
Advantages:
• lawyers are spokespersons and are especially important where the proceedings are complex: they help the client
make his/her way through the process
• legal expertise helps delineate the issues and present facts/arguments in an orderly way and
know what facts and arguments are needed and likely to succeed
38
• lawyers know how to conduct examinations and cross-examinations of witnesses
• lawyers can safeguard the interests of the client in the proceedings
• lawyers tend to equalize the process
Disadvantages:
• Can add to delay, formality and expense – make things slower, more formal and costlier
• May unduly “legalize” processes that don’t need to be legalized
• Make the process more adversarial
When necessary?
• General rule is: the right to have counsel will arise from PF where it is necessary to give a person a reasonable
opportunity to be heard in all the circumstances.
• Per N.B. Minister of Health we must consider the following factors:
(1) the seriousness of the issues and the impact of the decision: what’s at stake
(2) the complexity in terms of the process and the law
(3) the capacity of the person affected by the proceedings to understand the process and to participate without the
assistance of counsel
• A possible “off-setting factor” pointing against counsel rights would be:
(4) the need for speed, informality, economy in decision-making and whether involvement of lawyers will
significantly impair those goals could be offsetting factors.
NB MINISTER OF HEALTH
• Consideration of the 3 factors (seriousness, complexity, and capacity) led to the conclusion that the hearing could not
have been fair without counsel, and…
• What was at stake was so significant (security of the person as protected by s.7 of the Charter) that state-funded
counsel had to be provided if the individual was indigent and could not afford to engage legal counsel on his/her own.
40
• Suresh (2002) – valid reasons for reduced disclosure include “safeguarding confidential public security documents”
• Chiarelli (1992) – national security considerations can limit the extent of disclosure: e.g. gov’t may refuse to disclose
details of investigation techniques and police sources
• Charkaoui (2007) – non-disclosure of evidence at certificate hearings is rationally connected to the objective of
protecting Canada’s national security and related intelligence sources
Per Dickson, J.
• Once hearing was held, the board was under an obligation to postpone further discussion until Kane could be present
• At the very least, the board was obliged to provide with Kane the information it received from the president, and given
him “a real and effective opportunity to correct or meet any adverse statement made.”
• By hearing further facts after the hearing, deliberating and ruling against Kane, the Board made “a fundamental error”.
Official Notice:
• To what extent can an administrative decision-maker "can go beyond the record" to take “official notice” of certain
material facts and, if it can, what are its obligations to the parties vis a vis disclosure of such facts?
• Many administrative decision-makers are appointed for their expertise and sometimes for their technical knowledge
and they are expected to use this expertise or knowledge in their decision-making – so there should be some room
for them to rely on this expertise without having to “disclose” it to the parties.
• The policy of the law in this area must therefore attempt to reconcile the needs of procedural fairness with the need
for full and free use of the expertise that is located within the agency.
• “Official notice” is the administrative law counterpart of the concept of “judicial notice”. It is generally recognized that
judges can take “judicial notice” of 2 kinds of facts:
(1) facts that are so notorious as to be not in dispute and
41
(2) facts capable of immediate and accurate demonstration by resort to readily available sources of indisputable
accuracy
• Under the concept of “official notice” admin d/makers can take note of the same kinds of things as judges can under
“judicial notice”.
• But most administrative d/makers can do more, particularly if they have expertise that they are supposed to bring to
bear to the decision-making.
• In Ontario, s.16 of the Statutory Powers Procedure Act tries to capture both of these notions: it provides that a
tribunal can take notice of any facts that could be judicially noticed and also of “any generally recognized scientific or
technical facts, information or opinion within its scientific or specialized knowledge.”
• It is also important to note that there is also more scope of taking “official notice” where the decision-maker at issue is
located more towards the lower end of the PF spectrum where the disclosure principle itself carries somewhat less
weight (e.g. where the decision at hand is a policy oriented and discretionary decision).
• Additionally, another general principle is that that there is less scope to take notice of “adjudicative” facts as opposed
to “legislative” facts:
• when a court or tribunal finds facts regarding the immediate parties (e.g. about their conduct – who? what? where?
why? how?) this is an adjudicative function and the facts relevant to that function are adjudicative facts [facts to which
the law or policy is applied]
• on other hand, when court or agency develops law or policy it is acting legislatively and the facts that help inform the
tribunal's legislative judgment are "legislative facts" [facts that help the tribunal exercise its judgment or discretion] -
these facts are more general than adjudicative facts and there is more scope to take official notice of this category of
facts
• A good practice in many cases where there is doubt on this issue, the decision-maker should disclose what it intends
to take “official notice” of and let the party have an opportunity to address the matter.
Cross Examination:
• Here too, it is not possible to be categorical and say there is an absolute right to cross-examination in administrative
decision-making whenever there is an oral hearing going on.
• Like everything else, it depends on the context as a whole and what PF requires in a given case to give a party an
adequate opportunity to be heard.
• When the case is at the lower end of the PF spectrum, where more minimal fairness obligations arise, the court is less
likely to require cross-examination as part of PF
• E.g. in the Irvine decision the SCC held that a hearing officer’s denial of cross-examination was okay because it
occurred in an early, “embryonic” investigative stage of a staged process under the Combines Investigation Act.
“Fairness is a flexible concept” [78]
• Conversely, if a “high end” evidentiary-based process is going on, and wrongdoing is alleged against individuals as in
human rights process or professional discipline, cross examination rights will likely be required as part of the process
of “responding to the case against”, unless there is some overriding claim for privilege.
• Particularly where the credibility of witnesses is at stake, cross-examination rights are more likely to be required
unless there are sufficiently off-setting interests that would militate against allowing such rights (e.g. protection of
police informants).
• The extent to which cross-examination rights are necessary to provide a reasonable opportunity to make out a case or
to challenge the case against a person can also relate to whether or not there are other viable and adequate
alternatives to allowing cross-examination rights in all the circumstances of the case.
• If there are such alternatives available, then the case to demand cross-examination is weakened. For example, it may
be difficult to demand to be able to cross-examine an expert witness directly on the expert’s written report, if it is
possible to otherwise adequately challenge that report through introducing competing expert’s reports and/or
competing expert witnesses.
BAKER
• Baker established the duty to give reasons as a PF issue
• Per Madam Justice L’Heureux-Dube:
concerns about requiring reasons can be dealt with by ensuring that such a requirement leaves sufficient flexibility to
d/makers;
courts should be prepared to accept various kinds of written explanations for the decision as sufficient;
courts should recognize the day to day realities of administrative agencies when assessing the adequacy of reasons
• The duty of fairness will require the provision of a written explanation for a decision:
in cases such as this where the decision has important significance for the individual;
where there is a statutory right of appeal;
or in other circumstances
• “The profound importance of an H & C decision to those affected…militates in favour of a requirement that
reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical
to their future not to be told why the result was reached.”
• “In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided
with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for
reasons. Because of this, and because there is no other record of the reasons for making the decision, the
notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision.”
• Baker leaves a lot of room for judicial discretion to require reasons
• And lots of room for discretion on what constitutes reasons
• Lorenz wasn’t the decision maker
• The notes were riddled with stereotypes & prejudice
• Q: Does this typify the duty to provide reasons?
HELD:
43
• Duty to provide reasons is not satisfied by merely reciting the submissions and stating a conclusion
• Reasons must address the central points in issue and reflect consideration of the main relevant factors
• After extensive analysis of the terms “undue” and “obstacle”, the FCA held that the NTA failed to “provide sufficient
insight into the reasoning process that it followed” and therefore erred in law.
• But given the extensive discussion and analysis of the NTA’s decision and its own analysis, was the court simply
substituting its own preferred outcome?
• See next, more recent case from SCC – Nfld & Labrador Nurses Union
SURESH
• Recall that Suresh was found not to be engaged in terrorism, but was believed to be a fundraiser – and therefore a
member of a terrorist organization who would likely be tortured if deported.
• The Minister’s determination that he was therefore “inadmissible” under s.53(1)(b) of the Immigration Act involved
“no provision for a hearing, no requirement of written or oral reasons, no right of appeal — no procedures at all”
[117]
• Where the refugee has met the threshold of establishing a prima facie case that there may be a risk of torture upon
deportation, the Minister must provide written reasons for her decision dealing with all relevant issues [127]
• See text, p.416
• [126] The Minister must provide written reasons for her decision. These reasons must articulate and rationally
sustain a finding that there are no substantial grounds to believe that the individual who is the subject of a s. 53(1)(b)
declaration will be subjected to torture, execution or other cruel or unusual treatment, so long as the person under
consideration has raised those arguments.
• The reasons must also articulate why…the Minister believes the individual to be a danger to the security of Canada as
required by the Act.
• [126] In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather
than take the form of advice or suggestion, such as the memorandum of Mr. Gautier. Mr. Gautier’s report, explaining
to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor’s brief than a statement of
reasons for a decision.
• [127] These procedural protections need not be invoked in every case, as not every case of deportation of a
Convention refugee under s. 53(1)(b) will involve risk to an individual’s fundamental right to be protected from
torture or similar abuses.
• Q: If Lorenz’s notes in Baker constituted reasons, why didn’t Gautier’s in Suresh?
ATA
BACKGROUND TO BIAS
Rule against bias is part of Natural Justice/Procedural Fairness
Natural Justice has two limbs:
1. audi alteram partem: hear the other side – procedural entitlements associated with the conduct of a fair hearing process
such as notice and a reasonable opportunity to be heard – to make one’s case and to address/oppose the case against one
(“participatory rights”)
2. nemo judex in causa propria sua debet esse – no one ought to be a judge in his or her own “cause”: this is the RULE
AGAINST BIAS
It reflects the idea that justice requires that decisions be made by an impartial, unbiased decision-maker:
neutrality/disinterestedness
[note that Rule Against Bias can be framed positively as a duty of impartiality on the part of a decision-maker]
• historically, the Rule Against Bias was seen as part of NJ and, like audi alteram partem, it originally applied only to
judicial or quasi-judicial decision-making
• now the Rule Against Bias clearly extends also to other administrative decisions (Energy Probe, Baker, Imperial Oil)
• hence, as in the case of procedural obligations generally,
• THERE IS NO LONGER ANY NEED to classify the administrative decision as either judicial or quasi-judicial in order for
the Rule Against Bias to apply
• The present approach characterizes the Rule Against Bias as part of the larger obligations associated with PF: for
example:
In Baker, Justice L’Heureux Dubé stated:
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•“Procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial
decision-maker.”
In Newfoundland Telephone, Justice Cory stated:
• “The duty to act fairly includes the duty to provide procedural fairness to the parties. That cannot exist if an adjudicator
is biased.”
In Imperial Oil, Justice LeBel stated:
• “The duty of impartiality, which originated with the judiciary, has now become part of the principles of administrative
justice.”
• HOWEVER, as with other procedural fairness obligations, the Rule Against Bias varies in its application, depending
on the context of the decision-making at issue in any given case (the nature and impact of the decision, the nature of
the decision-maker, the statutory context etc.)
• Also, in some circumstances, different “tests” have been developed by the courts to determine what constitutes bias,
depending on the kind of decision-making at issue (e.g. an expressly “relaxed” standard applies to municipal
councilors when “prejudgment” is alleged as the basis for a bias objection):
• ...the content of the duty of impartiality ..., like that of all of the rules of procedural fairness, may vary in order to
reflect the context of a decision-maker’s activities and the nature of its functions ... . These variations in the actual
content of the principles of natural justice acknowledge the great diversity in the situations of administrative
decision-makers and in the roles they play, as intended by legislatures ...
• The categories of administrative bodies involved range from administrative tribunals whose adjudicative functions
are very similar to those of the courts, such as grievance arbitrators in labour law, to bodies that perform multiple
tasks and whose adjudicative functions are merely one aspect of broad duties and powers that sometimes include
regulation-making power. The notion of administrative decision-maker also includes administrative managers such
as ministers or officials who perform policy-making discretionary functions within the apparatus of government. The
extent of the duties imposed on the administrative decision-maker will then depend on the nature of the functions to
be performed and on the legislature’s intention. ...
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• the perceptions of the public are very important and public confidence in the decision-making will not be achieved
unless the appearance of bias is avoided (as well as actual bias itself)
• hence, the standard test for bias is the REASONABLE APPREHENSION OF BIAS test (RAOB)
All d/makers are human and bring with them the “intellectual baggage” of their own values, beliefs systems, experience and
knowledge – the Rule Against Bias must take account of this in a realistic way and cannot be understood in an absolute sense
(see paras 107 and 119-120 of R. v. RDS on CourseSpaces)
(ii) there is no need to prove ACTUAL bias in the mind of the d/maker
• it is enough to prove a Reasonable Apprehension Of Bias
• actual bias would also be very difficult to prove the inner “state of mind” of decision-makers when making their
decisions
• there are also concerns about the practicality and propriety of calling upon d/makers to testify about whether or not
they are actually biased or not [d/makers enjoy adjudicative privilege in this regard]
• result: there is no need to prove actual bias, rather other “tests” for bias are used which, if met, disqualify the d/maker
because of the perception of bias, regardless of whether or not there was actual bias (See R. v. S. (R.D.) per Justice
Cory at paras 109-110)
BAKER
R V S.(R.D.)
• Situations in which decision-maker has a pecuniary (economic) interest in the outcome of the decision – where he or
she stands to benefit or lose from the decision in a material sense that will have an impact on the pocketbook
Energy Probe v. Canada (Atomic Energy Ctrl Brd) p.259.
Pearlman v. MB Law Society; p.259 (footnote 90) 48
Imperial Oil v. Quebec (p.257 + CourseSpaces)
Bennett and Doman (CourseSpaces)
Southin, J.A.
• The reasonable person is, of course, a mythical creature of the law.
• In a matter as close to the line as this, some reasonable persons might say "What's the problem?" and others might
well say "It does not seem quite right for him to sit".
• In this case, acknowledging that the concept of apprehension of bias is being taken as far as it is rational for it to be
taken, I come to the conclusion that it is not just that Mr. Devine should sit.
• Ratio: In such a high profile case as this, where it is likely easy for the Sup’t to find a replacement for Devine not
connected to the timber industry, why run the risk of the appearance of bias?
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PRIOR KNOWLEDGE OR INVOLVEMENT AT EARLIER STAGES
• Situations in which there is a some kind of pre-existing relationship between the decision-maker and the general
subject-matter at issue in the decision
• Includes situations in which decision maker has had some kind of prior involvement with the specific case or issue
now before him/her for decision or where the decision-maker has previously expressed strong views and opinions on
the matters at issue in the proceedings
Committee for Justice & Liberty v. NEB; p.256
Wewaykum Indian Band v. Canada (CourseSpaces)
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informed of the decision-making process of this Court and viewing it realistically could conclude that the eight other
judges who heard the appeals were biased or tainted.
R. V RDS
1997 CanLII 324 (SCC)
• Trial judge dismissed charges of obstruction, resisting arrest against 15 yr. old black youth in face of highly discrepant
testimony
• Trial judge made comments about white police in the area & racial dynamics
• Crown appealed, arguing judge was biased
• Nova Scotia Supreme Court and Court of Appeal agreed and ordered new trial.
• Is a judge biased if she says the following?
• “The Crown says, well, why would the officer say that events occurred the way in which he has relayed them to the Court
this morning. I am not saying that the Constable has misled the court, although police officers have been known to do that
in the past. I am not saying that the officer overreacted, but certainly police officers do overreact, particularly when they
are dealing with non-white groups. That to me indicates a state of mind right there that is questionable. I believe that
probably the situation in this particular case is the case of a young police officer who overreacted. I do accept the
evidence of [R.D.S.] that he was told to shut up or he would be under arrest. It seems to be in keeping with the prevalent
attitude of the day.
SCC -- 6:3 decision
• Majority (4) said impartiality is very important, but comments were not out of line.
• Reasonable person would not say she was biased – just aware of street life reality.
• 2 (concurring) said: “close to the line” and “worrisome” but do not amount to RAOB
• 3 said: There is a RAOB because her comments = stereotyping of the police officer in a way that might reasonably
have appeared to affect her judgement as to credibility
CHRETIEN V CANADA
2008 FC 802 (CanLII)
• A public inquiry before an impartial and independent commissioner which investigates…and makes
recommendations for change can help to prevent a recurrence.. and to restore public confidence
• The inquiry’s roles of investigation and education of the public are of great importance. Yet those roles should not be
fulfilled at the expense of the denial of the rights of those being investigated.
• no matter how important the work of an inquiry may be, it cannot be achieved at the expense of the fundamental right
of each citizen to be treated fairly
• [44] see discussion of threshold issues in Cardinal v. content of PF issues in five Baker factors.
Court then goes on to carry out Baker analysis:
• [45-49]: nature of the decision & process
• [50-52]: nature of the statutory scheme
• [53-56]: importance of the decision to the individual
• [57-59]: legitimate expectations
• [60]: procedural choices of the decision maker
Conclusion: [61]
• I find that the applicant was entitled to a high level of procedural fairness before the Commission.
• Although the nature of the proceedings do not provide for the same level of procedural fairness required in a trial, the
potential damage that the findings of the Commission could have on the reputations of the parties involved in the
investigation was of such serious consequence that a high degree of fairness was required.
• What does this mean for bias?
• If Newfoundland Tel said there is a spectrum for RAOB, where does this fall?
• High (judicial) end (Gomery was judge and appointed due to fact-finding skills)?
• Low policy tribunal end? (where C would have to prove Gomery had a “closed mind”)
• Somewhere in between? (YES – somewhere between middle and high end of spectrum under Nfld Tel
analysis) [73]
Application of RAOB test to this case:
• Court rejects factor that Gomery’s daughter is partner at law firm frequented by Conservative Party lawyers – not
relevant
• Viewing Gomery’s media comments, court found that “an informed person, viewing the matter realistically and
practically and having thought the matter through, would find a reasonable apprehension of bias on the part of the
Commissioner. [80]
• The comments made by the Commissioner, viewed cumulatively, not only indicate that he prejudged issues but also
that the Commissioner was not impartial toward the applicant.
Why? [77–108]
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• the Commissioner formed conclusions about issues he was to investigate and report before having heard all the
evidence
• “program was run in a catastrophically bad way”
• “juicy stuff is yet to come”
• “What’s Chretien got to hide?” (Commission staff, but endorsed by Gomery)
• PM putting name on golf balls was “small-town cheap” and “vaudeville show”
• This created a sense that the proceedings were perfunctory and G
• G had duty not to reach conclusions until all evidence heard, including hearing from Chretien.
ANIMOSITY
• Situations in which d/maker's conduct or comments during the proceedings (e.g. hostile questioning of witnesses,
rude behaviour, disparaging remarks) gives rise to an allegation that he or she holds, or has developed, a particular
animosity or a discriminatory attitude towards a party or a counsel
• Animosity is sometimes referred to as “actual bias” because the bias becomes evidenced in the actual behaviour of the
decision-maker during the hearing process
Baker [comments & CAPITALS in Officer Lorenz’s memo]
DEFENCES TO BIAS
There are 3 defences to bias:
1. Statutory authority
2. Necessity
3. Waiver
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Always remember that what constitutes “bias” will be different in different contexts - what is a disqualifying bias in
some contexts will not necessarily be a disqualifying bias in other contexts
To overcome this must resort to a “rights document” such as Charter s. 7 or the Canadian Bill of Rights (if the decision-
maker was federal) to “trump” the statute and strike down provision that authorizes the allegedly biased DM to decide
We’ve discussed this case previously as an unsuccessful attempt to apply the Legitimate Expectations Doctrine. CUPE also
argued that: (1) retired judges appointed by Minister to a labour arbitration board were biased as a class, and (2) that
Minister of Labour was biased in making the appointments because he had an interest in cost cutting, “public sector
rationalization” and the outcome of this arbitration involving health workers.
NECESSITY
If DM who labours under disqualifying bias would be the ONLY POSSIBLE decision-maker authorized to make the
decision in question, this will be accepted and the decision-maker can decide, despite the RAOB
Otherwise there would be a failure of justice
WAIVER
Parties who know about bias can waive it expressly or impliedly
Implied waiver can occur only if the person alleged to have waived knew about the bias and knew also that they could
object to it, but nevertheless elected to proceed w/o making objection & thereby lose their right to complain about bias
Waiver is a discretionary ground on which court can refuse relief to A found to have waived their right to object
LACK OF INDEPEDENCE
Sometimes subsumed under bias, but is now usually treated as a separate issue & a separate basis for judicial intervention
Can refer to either a specific DM (individual independence) or to the institutional status of the agency or tribunal as a
whole (institutional independence)
INDIVIDUAL INDEPENDENCE
Whether the individual DM is inappropriately dependent on someone else in the decision-making process, given the
nature and context of the decision-making at issue
Individual DMs who hold adjudicative hearings at the higher end of the PF spectrum are required to make up
their own minds as individuals, and must not be “in the thrall” of others, including others w/i agency (the chair,
lawyers, Minister, other tribunal members who did not sit on the case and did not hear the evidence and arguments, etc.)
INSTITUTIONAL INDEPENDENCE
Extent to which the administrative agency must be free (and must appear to be free) from interference or control
by others, particularly others within the executive or political branch of government
e.g. Is National Energy Board independent if Prime Minister Harper says the Enbridge pipeline should be approved
because it is in national interest?
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In this context, the issue becomes the extent to which ADMs in some contexts require something similar to judicial
independence in terms of the Valente criteria
Valente criteria used to measure judicial independence:
1. Security of tenure
2. Security of remuneration
3. Security (independence) in the administration of the cases that come before them
Developing area of the law and is still uncertainty re when independence is needed and what kind of independence should
apply to administrative decision makers of different kinds
See also Ocean Port Hotel and CP v. Matsqui Indian Band
PRELIMINARY POINTS
Legal pluralism and porous boundaries
Ongoing struggle between assimilation, integration, and transformation
Why is it difficult for indigenous legal traditions to prevail?
5. Interaction between systems can alter the nature of the parties, values, traditions involved
6. Decentralized and less hierarchical traditions run up against centralized and top-down ones
OVERARCHING QUESTIONS
• Who should review ASG institutions?
• Do s.96 and Crevier apply?
• Can Canadian courts legitimately/properly review ASG institutions?
• Should administrative law principles be used to judge ASG administrative processes involving disputes within aboriginal
communities?
FRAMEWORKS
DUTY TO CONSULT
1. Is there a duty? (threshold or trigger)
2. What is the content of the duty? And has that duty been met?
RIO TINTO
Breaks “trigger” down into 3 elements:
1. The Crown has real or constructive knowledge of the potential existence of an aboriginal right
2. The Crown contemplates conduct
3. With potential adverse affects
Trigger criteria defined broadly, but past infringements will not trigger current DTC
Instead, past wrong may result in damages remedy.
Modern treaties do not exclude DTC (Little Salmon).
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CONTENT OF DUTY
HAIDA
A spectrum: “the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the
existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title
claimed.”(Haida, para 39)
Procedural Aspects:
Providing affected communities with notice, holding meetings, sharing information, responding to community concerns.
Can be fulfilled through existing public consultation processes (e.g., environmental assessment) in appropriate
circumstances (Taku River Tlingit (2004))
Aboriginal communities have an obligation to participate in good faith (para. 42)
Substantive Aspects:
The idea of “accommodation,” where appropriate:
o May be an adjustment to the intended project (i.e., move where the road goes); a change of policy (i.e., change how
many or how licenses to take water are issued); compensation; deciding not to go ahead with a project; etc.
o Required so that consultation is “meaningful” but consent to the project is generally not required.
o Consent may be required in relation to strong rights claims/proven rights (esp. title) but otherwise rare.
o Seems to contradict international law: UNDRIP refers to consultation obligations and require the “Free, Prior, and
Informed Consent” of indigenous peoples to developments in their traditional territories (FPIC)
1. As passed by legislative assemblies, in accordance with constitutional “manner & form” requirements
• No duty of fairness
• No duty to consult (but at least proven aboriginal rights constrain legislative decision-making and breaches can
invalidate legislation unless the infringement can be justified, which requires consultation….)
2. Legislative proposals by the executive, before they reach the legislative assembly
• No duty of fairness (CAP)
• Possibly a duty to consult? (In practice, has happened at least a couple of times )
LITTLE SALMON
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