Introduction
I THE RULE OF LAW AND THE ADMINISTRATIVE STATE
- Admin law = regulating the implementation of laws by public officials to whom authority has been granted by statute
- rise of the administrative state, the delivery of complex public programs, and the need for flexibility in the performance of public tasks vs. accountability of public bodies
- Positivist tradition – Dicey and the rule of law:
Constitutionalized principle of rule of law as a basis for admin law = law over executive caprice and law as the boundary of acceptable action; government and citizens alike are subject to the general law of the land administered in the ordinary courts; no separate body of law administered by admin tribunals (cf. Fr. ‘droit administrative’)
- Functionalist critique:
Rule of law model (i) hinders the effective implementation of public interest programs; and (ii) is inappropriate given the inevitable questions of policy that admin questions raise
- Mullan’s middle ground:
Strive for accountability while still respecting the expertise of the administration by scrutinizing decisions that seem contrary to the interests of the intended beneficiaries of the legislation and intervening when the agency’s interpretation is wrong
II INTERACTION BETWEEN COURTS AND ADMINISTRATIVE AGENCIES
- Appeals:
Rights of appeal are purely the creation of statute: courts have no inherent appellate jurisdiction over administrative agencies. If the court concludes that the agency erred, it may either refer the matter back to the agency or reverse the decision and find in favour of the appellant
- Courts’ Inherent Judicial Review Jurisdiction:
JR ≠ appeal, ie review only determines whether the decision is legal, not whether, on its merits, it was the ‘right’ decision to make. Even in the absence of statutory rights of appeal, courts exercise a supervisory review jurisdiction over the institutions & officials w/ responsibility for administering our public programs
- The courts exercise this supervisory jurisdiction through the common law prerogative writs: (i) certiorari – to quash or set aside a decision; (ii) prohibition – to order a tribunal not to proceed in a matter; (iii) mandamus – to order the performance of a public duty (compel reconsideration); and (iv) habeas corpus – to determine the legality of a person’s detention, whether by a private person or public official, w/ a view to ordering the release
- JR an exercise in interpretation
- JR can NOT be fully excluded by a ‘privative clause’ although it will be a strong indicator of greater deference in the standard of review analysis
- Courts adopt the ‘pragmatic and functional analysis’ (now called the ‘standard of review analysis’) to determine the intensity with which the courts should review AA
III CONSTITUTIONAL AND ADMINISTRATIVE LAW
- A constitution ‘similar in principle to that of the United Kingdom (BNA Act, Preamble) imported, among other principles, that of parliamentary sovereignty
- Rule of law is now constitutionally entrenched (1982 Const, Preamble and one of the unwritten constitutional principles identified in the Secession Reference), ie all governmental action – including that of the legislature – must be lawful
- Judicial review seeks to address the tension between parliamentary supremacy and foundational democratic principle on the one hand, and the rule of law on the other
- BNA 96 has been held to constitutionally entrench the inherent powers / core jurisdiction of the courts
IV SUBSTANTIVE REVIEW (JURISDICTION) - Jurisdiction to act is made up of 3 conditions:
(i) a determination of the scope of authority;
(ii) a determination of whether the conditions precedent to the exercise of that authority are present (the ‘preliminary or collateral question’); AND
(iii) the permitted or mandatory actions an administrator must perform in the event that determination (i) and (ii) are established.
- Conditions precedent (determination (ii)) can consist of a number of different factors: factual, legal (express and implied), or discretionary
- The courts are more deferential when the is authority (ie (i)) is satisfied - Includes errors of fact, of law, and the abuse of discretion
- Failure to satisfy an element = beyond jurisdiction = ultra vires (and VOID)
V PROCEDURAL FAIRNESS
- One of the implied conditions precedent to the existence of jurisdiction (condition II(ii) and the following bullet above) if procedural fairness
- Ie a finding that a decision maker has not abided the principles of procedural fairness that applied to him the specific matter in question, will result in any action taken as being ultra vires (and VOID)
- A highly variable standard; dependent on the context of the particular statute and the facts of the case
Procedural fairness – threshold
I HISTORICAL OVERVIEW
Pre-Cooper, classification of the function being performed by the decision-maker was crucial, ie hearing requirements were only imposed for the exercise of judicial authority
- Problem: the courts didn’t adopt a consistent and clear definition of what constituted a judicial (as opposed to an administrative) function
II THE TRADITIONAL DOCTRINE
Cooper v. Board of Works for Wandsworth District: Statute required anyone intending to build a new house to give notice to the Board b/f beginning construction or could be demolished. It tore down his house after it claimed it had not received the notice
• CL provides a duty of fairness even in the absence of a statutory right; no man is to be deprived of his property w/o his having an opportunity of being heard
• Court rejects the quasi-judicial/judicial vs admin distinction wrt the application of procedural fairness.
III PROCEDURAL FAIRNESS: DIMENSIONS AND LIMITATIONS
Nicholson v. Haldimand-Norfolk Police Commissioners: Regulations under the Police Act provided all police constables who served more than 18 months w/ the right to a hearing prior to any penalty being imposed. Nicholson served for 15 mos. and was discharged w/o a chance to make submissions
• Affirmed the common law duty of fairness even where statutory procedural protections (if any) do not apply and REJECTS the functional distinction,
Martineau v. Matsqui Inmate Board: prisoner was disciplined and alleged he was not given a hearing
• Court sets out a spectrum analysis ranging from
- Purely ministerial decisions (generally less procedural fairness is afforded); - Legislative functions (some procedural fairness may be afforded);
- Judicial decision making (a lot of procedural fairness afforded)
• Between the judicial decisions and those which are discretionary and/or policy-oriented are various decision-making processes w/ a flexible gradation of procedural fairness
MINISTERIAL --- JUDICIAL
(broad, polycentric, “legislative”) (affect individual rights)
Only right to respond / be heard Full panoply of
procedural protections Cardinal v. Director of Kent Institution: criminal charges laid against hostage-taking prisoners and they were placed in segregation. A Segregation Review Board recommended they be released but the prison Director rejected recommendation
• The denial of a right to a fair hearing must always render a decision invalid, ie it cannot be argued that relief should be denied on the basis that no hearing could affect the outcome
Dunsmuir v New Brunswick: Dunsmuir was employed ‘at pleasure’ (appointed by Cabinet) as a legal officer by the Dept of Justice and employment was regulated ito 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.
After a rocky relationship he was sent a termination letter with reasonable notice. Dunsmuir took the matter to adjudication ito the Public Service Labour Relations Act. The adjudicator held he was entitled to proc fairness and his denial of a meeting with his employer before being dismissed was unlawful
• 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
• The distinction between public office-holders and public contract workers / ‘statutory employees’ is irrelevant wrt 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 holder’s have recourse to CL fairness where the applicable law leaves him without any protection)
• In determining the nature of the relationship one must take into account legal context (relevant statutes AND contracts [AND Charter]),
- Where fairness is prescribed those prescriptions must be given effect to, to the exclusion of the CL public law duty of fairness
- 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)
- Where private obligations of fairness are not performed in good faith, private law remedies apply (in employment context by increasing required notice)
• 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
- 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
II(1) Emergencies:
• Whether the action is justified without a hearing depends on an assessment of whether there was genuinely a need for such action. It is likely that the court will pay considerable deference to the authority’s judgement as to the urgency of the situation (Mullan)
II(2) Cabinet & Cabinet Appeals
Canada (Attorney General) v. Inuit Tapirisat of Canada: Bell Canada applied to the Telecoms Commission for a rate increase, and ITS wanted the Commission require the better provision of service in remote areas before it did so. The Commission denied the request and there was an appeal to Cabinet. Issue concerned the procedural obligations of the Governor-in-Council int he context of ‘cabinet appeals’
• In determining whether a duty of procedural fairness applies to the executive, a court must construe the statutory scheme as a whole to det what degree, if any, the legislator intended the duty to apply - Where the Exec has been assigned a function where the subject matter is polycentric (multiple
& competing interests; not an individual concern), the duty of fairness will NOT be triggered.
II(3) Bylaws & Rule-Making
Homex Realty v. Wyoming (Village): Without giving notice to Homex, the municipality passed a bylaw which prevented Homex specifically from conveying its subdivision lots.
• Where a bylaw is created, and has immediate effect and a specific target, courts will imply a right to be heard unless there’s an express provision to the contrary
- [suggests that where a bylaw or subordinate legislation of a more general character is enacted or promulgated, claims to procedural entitlements may be diminished or eliminated]
- [consistent with spectrum analysis: bylaw generally broad and polycentric but not when affects individual rights]
• The presence of a compelling public interest does not alone abrogate or diminish a citizen’s right to procedural protection
- The public interest is best served by affording the private interest full disclosure and a fair opportunity to be heard
II(4) Policy Making
** Where the impact of a policy decision is diffuse, affecting a broad spectrum of the public in a generally undifferentiated manner, NO procedural fairness (unless the legislation contains some indication of public participation or obligations of participation)
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
• The Minister’s 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)
II(5) Decisions Affecting Rights, Privileges, or Interests
Re Webb and Ontario Housing Corporation: The Webb fam applied for and were granted tenancy in rent controlled apartments. The property managers recommended termination of their lease b/c of problems caused by Webb’s kids. After notice, OHC officials approved, and her lease was terminated
• The threshold for proc fairness no longer depends on a distinction btw rights and interests, although the content of the duty does
• Applicants for privileges are not entitled to proc fairness but once granted they have an interest - Once Webb became a tenant and qualified for & received the benefit of reduced rent, she had
an interest not just a privilege and OHC was under a duty to act fairly [progressive decision, holders of state assistance entitled to proc fairness]
Hutfield v. Board of Fort Saskatchewan Gen. Hospital: Dr Hutfield applied for hospital privileges which was rejected by the Hospital Board. He applied again, unsuccessfully asking to make submissions to the Board, and was rejected without reasons
• A distinction should NOT be drawn wrt proc fairness in the case of modifying or extinguishing existing rights & interests and in the case of an application for a permission or consent not previously enjoyed
• 3 additional elements support a duty to act fairly in the case of a prospective privilege: (i) where the decision involves facts or mixed fact & opinion (eg investigation of credentials, training, suitability, experience, and references); (ii) where a refusal casts a slur on the applicant’s reputation or financial stability; (iii) where the general interests of the public are affected by the decision (eg refusal of hospital privileges impairs his ability to provide the level of medical treatment that his license entitles the public to assume he has)
Baker v Canada: the fact that a decision is administrative and affects the right, privileges, or interests of an individual is sufficient to trigger the application of the duty of fairness
Moreau-Berube v New Brunsiwick: the duty to act fairly applies to all administrative bodies acting under statutory authority
II(6) Non-Dispositive Decisions
• Decisions of preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may
• Where there is rubber stamping (i.e. decisions of a preliminary nature lead to the final decision), it can be argued that the decision is being made by the preliminary decision maker
Re Abel and Advisory Review Board: Advisory Review Board conducted annual reviews of those psychiatric patients who had been discharged from criminal charges by special verdict of insanity and submitted recommendations to the LG who would take the final decision. Lawyers for patients asked for disclosure of patient files, reports given to the Board etc. (proc fairness)
• Re non-dispositive nature of the Board’s report
- The proximity b/n the preliminary decision maker or investigator and final decision maker is critical in determining whether there is a duty of fairness
- Although the LG is not bound to act on the recommendations in the Board’s report, the pt.’s only hope of release lies in a favourable recommendation by the Board – rubber stamping
Dairy Producers Coop v Saskatchewan (HRC): following a complaint of sexual harassment, an inveistigating officer was appointed by the HRC to recommend whether a board of inquiry should be appointed. Dairy Coop was refused particulars during his investigation.
• Where an interim decision-maker has no power to affect the rights of a person, but merely to make a recommendation of eg, ‘probable cause’ (investigative powers), there is no requirement of proc fairness; cf. determinative powers
- [perhaps influenced by fact that full particulars given at board]
II(7) Doctrine of Legitimate Expectation
• A legitimate expectation refers to 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
• The doctrine of LE can only produce more fairness
• No substantive relief and cannot fetter the decision following the representations or consultation Furey v. Roman Catholic School Board: Board decided to close an elementary school under its jurisdiction w/ notice even after it had some years earlier issued guidelines est a process to be followed in the case of closings.
• Court of Appeal court was unable to find any evidence that the residents believed past practice would be followed in this instance
- Must be a reasonable expectation for LE
Mount Sinai Hospital v. Quebec (Minister of Health & SS) (SCC, 2001): Hospital was planning on moving to another location and Minister agreed that if the hospital was relocated, he would issue it a license for the new premises. When it sought to have its license updated, it was refused
• LE looks to the conduct of a govt actor, not the nature of the applicant’s interest
• An applicant who relies on the doctrine of LE may show, but does not have to show, that he/she was aware of such conduct, or that it was relied on w/ detrimental results
- The focus is on promoting regularity, predictability, and certainty in govt’s dealing w/ the public - LE based on narrower requirements than estoppel and can operate as a cause of action
• Public law estoppels requires an appreciation of the legislative intent behind the power attempting to be estopped
- Public interest may override establishing estoppels
CUPE v. Ont. (Ministry of Labour): ON. hospitals and nursing homes had to resolve labour disputes according to the Hospital Labour Disputes Arbitration Act; practice had usually been to appoint mutually acceptable arbitrators for resolution of disputes during the life of the CA. 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.
• 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
IV CONSTITUTIONAL DIMENSIONS
• If BoR or Charter rights are concerned (govt official is dealing with a pvt person) the ADM must conform with the Const
- Charter applies to exec action taken pursuant to leg authority via s 32
- Section 32 means the charter applies to any statutory authority including regulations, bylaws, orders, decisions, etc. (Douglas/Kwantlen Faculty Assoc v Douglas College; Slaight Communications v Davidson; Eldridge v BC)
- Since Parliament cannot enact laws contra the Const, all AA must conform with the Charter
• Esp nb when dealing with ‘due process’ ito BoR s 1() and ‘fundamental justice’ ito Charter s 7 – both of which incorporate elements of natural justice
• Once a claimant shows a Charter breach (eg deprivation of LLSP AND no FJ) the onus is on the govt to prove justifiable ito s 1
IV(1) Issues of General Applicability The Canadian Bill of Rights
• Bill of Rights is a federal statute whose applicability is confined to the federal domain; it has no relevance to prov statutes or decision making under prov jurisdiction
• The BoR has quasi-constitutional status – it declares its primacy over all other legislation unless that legislation contains an express provision such that it overrides the Bill of Rights
• Unlike the Charter, the Bill of Rights protects property rights - Question is whether purely eco rights can be protected
The Charter of Rights and Freedoms
• Limited in its scope to governmental bodies or those performing governmental functions
• Canadian courts have established that the Charter does NOT apply to universities or hospitals; McKinney and Stoffman, respectively
• Note: Bill of Rights would also not apply to hospitals and universities because they are under provincial jurisdiction and the Bill of Rights is federal
IV(2) Bill of Rights & Charter as Sources of Procedural Protections
• Property
- Charter s 7 does NOT protect property
- s 1(a) of BoR DOES protects ‘life, liberty,security of the person, and enojoyment of property - only the BoR can serve as a source of protection for procedural rights for the deprivation of
property by government
Authorson v Canada (Attorney General): Bill of Rights: A disabled veteren challanged a provision in the fed Dept of Veteren Affairs Act that barred any claim to interest on moneis held by teh Dept obo disabled veterens in clear and specific language. The Crown was collecting on his (and others’) behalf while he was incompetent but when he became competent the Crown only paid over the principal. The Crown was under a fiduciary duty to pay interest on veterns’ pension funds but it was extinguished by the statute.
• A property claim
- Charter s 7 cannot help; does not protect property rights
- BoR s 1(a) means he is enttled to ‘due process of law’ if deprived of ‘enjoyment of property rights’
• 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)
- the courts will not impose additional requirements
- normal Parliamentary procedure is all that is reuqired for Palirament to take away indiv rights; no fair hearing is required
• s 1(a) does NOT entitle a claimant to substantive due process, ie expropriation only with compensation
Singh v. Canada (Minister of Employment & Immigration): maj = Charter / dissent = BoR: Minister, acting on advice of the Refugee Status Advisory Committee, determined certain refugees were not CAT ‘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 Majority (Wilson J):
• The Act precluded the CL duty of fairness
- [They could only succeed if Charter or Bill of Rights requires the court to override Parliament’s decision to exclude procedural fairness]
- [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]
• The refugee scheme violated the appellant’s right under the Charter s 7
- Fundamental justice includes procedural fairness at a minimum [ie CL rights the minimum but more can be obtained ito Charter]
- Hearings based on written submissions may be satisfactory in some but not all cases; an oral hearing is necessary where there is a serious issue of credibility
Dissent (Beetz J):
• We should look to the Bill of Rights b/f looking to the Charter
- Apps were denied their right to a fair hearing in accordance w/ the principles of fundamental justice under s 2(e) of the Bill of Rights
- The principles of fundamental justice will NOT impose an oral hearing in all cases – the most nb factors in determining the procedural content of fundamental justice in a given case are (i) the nature of the rights at issue; and (ii) the severity of the consequences to the individual
Chiarelli v Canada (Min of Jutice): C was a permanent resident about to be deported after being convicted of a crime. His appeal was lost after investigations into him being an organized criminal by the Security Intelligence Review Committee. The relevant Act provided that he could be present at the Committee’s proceedings but not have access to or comment on any representations made
• In assessing whether a procedure accords with fundamental justice it may be necessary to balance the competing interests of the sate and the individual
IV(3) Life, Liberty and Security of the Person
• Charter s 7 does is limited to ‘life, liberty, and security of the person’ (NOT property)
• only deprivations of these rights by ADMs will trigger proc fairness
Wilson v. British Columbia (Medical Services Commission): the Medical Services Commission established a scheme for limiting the numbers of practicing doctors and restricting the geographic areas of their practices in order to control total costs of health services and ensure the appropriate allocation of doctors throughout the province
• ‘Liberty’ is NOT confined to mere bodily restraint – it may embrace individual freedom of movement,
including where to pursue one’s occupation, subject to reasonable and legitimate restrictions on individuals imposed by the state (ie fundamental justice or demonstrably justified under s. 1)
• Here, the scheme was not justified by principles of fundamental justice b/c it was based on vague and uncertain criteria, which combined w/ areas of uncontrolled discretion, leaves room for arbitrary conduct
• ‘Liberty’ does not encompass a right to work, but it does include a right to follow one’s chosen profession
New Brunswick (MOH & Comm. Services) v. G.(J.): Minister sought to extend a judicial order granting the Minister custody of the appellant’s 3 kids for an additional 6 months
• ‘Security of the person’ protects both the psychological and physical integrity of the individual - For admin action to restrict security of the person, the impugned state action must have a
serious and profound effect on the person’s psychological integrity
- The effects of the state interference must be assessed objectively w/ a view to their impact on the psychological integrity of a person of reasonable sensibility
- This need not rise to the level of nervous shock or psychiatric illness; but must be greater than ordinary stress or anxiety
Blencoe v. British Columbia (Human Rights Commission): while serving as Minister in BC, the Resp was accused of sexual harassment; Premier removed him from Cabinet and dismissed him from caucus. Hearings were scheduled before the BC Human Rights Tribunal over 30 mos. after the initial complaints were filed and things descended into a media circus. Resp alleged that the unreasonable delay caused serious prejudice to him and his family that amounted to an abuse of process and a denial of natural justice
Majority (Bastarache J):
• The Charter does apply to all entities created by statutes
- Being autonomous or independent from government is not a relevant consideration. Independent bodies may still be implementing a govt programme
• Section 7 encompasses 3 distinct interests
- Life: irrelevant here
- Liberty:much broader than physical restraint; can apply where state policies affect personal life
choices
- Security of the person: only stress that is (i) serious; and (ii) caused by the state can violate security of the person.
This was not caused by the state; in administrative proceedings, it is a citizen making the allegation and the state is resolving the complaint (cf. criminal proceedings). Protection of reputation and freedom from stigma are values that must guide courts in their interpretation of the Charter but are not serious enought to be freestanding rights under s. 7
• Court also concludes that there was no abuse of process (not a Charter infringement but significant enough to entitle a stay)
- To amount to an abuse of process, the delay must be clearly unacceptable and have directly caused a significant, actual prejudice of such magnitude that the public’s sense of decency and fairness is affected.
Dissent (LeBel J.):
• Focused on the impact of the delay on B’s life, not on his hearing – career finished, family chased across the country, clinically depressed, couldn’t coach kid’s soccer team
Duty of fairness – content (choice of procedures)
• Once the threshold for the duty of fairness is crossed, we must consider the content of procedural entitlements
• Notice? Access to evidence? An oral hearing? Counsel? Cross-examination? Reasons?
I STATUTORY POWERS PROCEDURE ACT Statutory Procedures Act (Ont):
• 3(1) Application- Subject to s 3(2) the Act applies to a proceeding by a tribunal in the exercise of a
statutory power, where the tribunal is required by or under the Act or otherwise by law [ie common law, another statute, Charter] to hold or to afford to the parties to the proceeding an opportunity for a hearing before decision making.
- The Act applies where a tribunal is required by the Act, another act, common law, or the Charter to afford someone procedural fairness; ie it applies where the threshold has been crossed
• 3(2) Where Act does NOT apply- The Act does not apply to a proceeding,
- Before the Assembly or any committee of the Assembly;
- In or before (i) the Court of Appeal; (ii) the Ontario Court (General Division); (iii) the Ontario Court (Provincial Division); (iii) the Unified Family Court; (iv) the Small Claims Court; (v) a justice of the peace
- To which the Rules of Civil Procedure apply;
- Before an arbitrator to which the Arbitrators Act or Labor Relations Act applies; - At a coroner’s inquest;
- Of a commission appointed under the Public Inquiries Act;
- Of one or more persons required to make an investigation and to make a report, w/ or w/o recommendations, where the report is for the info or advice of the person to whom it is made and does not in any way legally bind or limit that person in any decision he or she may have power to make; or
- Of a tribunal empowered to make regulations, rules or bylaws in so far as its power to make regs., rules or bylaws is concerned
• For the most part, the SPPA is considered irrelevant b/c the common law has advanced beyond the procedures afforded in the SPPA
• But it is important to consider whether the parties are entitled to an oral hearing under statute OR at common law [and thus whether the SPPA applies] b/c,
(i) there is a codified list of the procedures owed to that party; and (ii) the SPPA may offer a procedure that the common law does not
• Note: Under common law, an oral hearing will not always be required but may be, for example, in cases of serious credibility (Singh)
II COMMON LAW
Baker v. Canada: 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.
• All of the circumstances must be considered in determining the content of the duty of fairness.
• 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
(i) The nature of the decision being made and the process followed in making it-
- 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. - 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.
(ii) The nature of the statutory scheme & the terms of the statute pursuant to which the body operates-
- Greater procedurla protections will be required when the statute does not make provision for appeal procedures
(iii) The importance of the decision to those affected by it
- The greater the impact on the person(s) affected, the more stringent the procedural protections that will be mandated
(iv) Any legitimate expectations-
- If the claimant has an LE that a procedure will be followed, this procedure is required by the duty of fairness.
- If a claimaint has an LE of a certain reuslt, more extensive procedural rights may be required [but NOT substantive relief]
(v) ADM’s choice of procedure (not determinative, but nb)-
- Especially relevant when the statute admits the ADM discretion or when it has an expertise in determining what procedures are appropriate in the circumstances
Suresh v. Canada (Minister of Citizenship & Immigration): Suresh’s applicantion as a landed immigration status was turned down by the Minister as he was considered a danger to the security of Canada. The certificate was a prelude to an order of deportation and he might be tortured back 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 officer’s report (based on CSIS material), on which basis the certificate was issued, and as a consequence, was not able to respond at all. He claimed he was entitled ot procedural protections under Charter s 7
• Example of an applicatin of the Baker factors
(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 Canada’s ratification of the CAT gave rise to an LE
(v) ADM’s choice of procedure- expertise of ADM or ADM admitted discreation = deference
• Barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter
• Finding
- 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 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
Ahani v. Canada (Minister of Citizenship and Immigration): Ahani (citizen of Iran) entered Canada and was granted Convention refugee status. He was informed of the minister’s intention to issue an opinion (w/ the intention of deportation) and was given the chance to make submissions. He filed an application for judicial review of the minister’s decision challenging the constitutionality of the Act. He claimed that if sent back to Iran, he would likely face torture.
• Applying the framework from Suresh, the Court held that he failed to clear the evidentiary threshold required to access s. 7 protection (a prima facie case)
• Unlike Suresh, A was fully informed of the allegations against him and was provided with the opportunity to make written submissions.
III SPECIFIC CONTENT ISSUES
III(1) Notice (Pre-Hearing)
• 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)
• Aspects of notice (i) Form-
- Written notice is the norm unless context permits some other form (ie oral) (ii) Manner of service-
- Personal service is the norm (subject to context)
- Means of giving notice generally specific by legislation and is usually some form of public notice
- In the absence of legislative provision, courts will likely allow any public notice (eg newspapers)
- Re Central Ontario Coalition and Ontario Hydro:Court held a public notice will be inadequate if affected persons cannot reasonably comprehend from the notice that their rights, interests, or privileges would be affected.
(iii) Timing-
- 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 (Krever Commission) (iv) Contents-
- Notice must provide enough info about the issues to enable the party to respond (Krever Commission)
Canada v. Krever Commission: Rising incidents of HIV and Hepatitis C from tainted blood prompted federal & provincial ministers of health to convene an inquiry to examine the blood system holding extensive hearings. On the final day of hearings, the Commission sent out confidential notices to blood system participants (path labs etc.) that the Committee might reach specific conclusionsafter the 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
• Timing:
- Timing of notices depends on the circumstances of the case (criminal, admin etc.)
- The more extensive and complex the evidence is, the more likely the notices will be closer to the end of the inquiries
- 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
• Content:
- Notice must provide enough info about the issues to enable the party to respond in a meaningful way
III(2) Discovery (Pre-Hearing):
• 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
• 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)
Ont. (HR Comm.) v. Board of Inquiry (Northwestern Gen. Hosp.): Board of inquiry set up under Ontario HR Code to hear complaint of racial discrimination made by 10 nurses. Board was ordered by the Commission to provide the respondents w/ the statements and identities of the complainants and witnesses interviewed. Board applied for judicial review of the order – arguing that the documents were privileged (produced or obtained for litigation purposes)
• Court held that the combination of sections 8 and 12, SPPA amounts to a recognition of the Stinchcombe principles in appropriate administrative contexts, ie complete subject only to privilege or irrelevance
• Rationale for disclosure:
- Justice is better served when the element of surprise is eliminated and the parties are prepared to address issues on the basis of complete information of the case to be met
- The fruits of the investigation are not the property of the Commission, but the property of the public to be used to ensure justice is done
CIBA-Geigy v. Canada (Patented Medicine Prices Review Board): CIB was being reviewed by the Patent Board for selling its drugs at an excessive price. Board’s chairman, under statutory authority, reviewed report from Board staff on the pricing issue to decide whether a formal hearing was to be held. Under the statute, CG could ask for disclosure of all documents relied on by Board staff in making the report but Board refused.
• Distinguishes criminal/human rights context from economic regulatory context
- There are serious eco consquences here BUT no power to affect human rights in a way akin to criminal proceedings
May v Ferndale Institution: the Correctional Service of Canada used a computer programme to formulate a score for inmate determining their appropriate security level. May was transferred from a minimum to medium-security institution (more restrictive of liberty). He applied to for habeas corpus to go back to which end he also applied for a certiorari for the scoring matrix.Corrections and Conditional Release Act required the ADM to give all the information to be considered in the taking of the decision a reasonable period before it is taken
• The Stinchcombe principles do NOT apply in the administrative context.
• In the administrative context, the duty of procedural fairness generally requires that the ADM discloses the information he or she relied upon; the requirement is that the individual must know the case he has to meet
• Outside Stinchcombe this means the ADM must comply with statute and CL proc fairness - The CCRA imposes onerous duties of disclosure on ADMs
- Considering the legislative scheme, the nature of the undisclosed information and the importance of the decision for the appellants, there was a clear breach of the duty to disclose to the level reuqired by the statute
III(3) Delay
Kodellas v Saskatchewan:
• Whether a delay is unreasonable for the purposes of s 7 depends on a number of factors (i) Whether it it prima facie unreasonable
(ii) The reason for the delay having regard to the conduct of the complainants (iii) The prejudice or impairment caused by the delay
(iv) Not numerus clausus
III(4) Oral Hearings (In-Hearing)
• Advantages to a full blown oral hearing:
- allows you to establish’ clients credibility,
- allows you to tap into boards sympathy, - examination,
- allows tribunal member to test outside concerns and ask for clarification
• Disadvantages to an oral hearing:
- time and money,
- assessment of credibility depending on the views and stereotypes held by adjudicators,
- open yourself to cross-exam,
- emotional costs of putting a victim up on the stand
• TEST on whether the circumstances warrant an oral hearing
- Issues of credibility ALWAYS warrant an oral hearing (Singh, Suresh)
- Claim to an oral hearing is also one that is situation-sensitive in the sense that its necessity depends on the matters that are at issue in the proceedings instead of being a feature of all exercises of relevant statutory power
Masters v. Ontario: Ont. agent general in NYC (appointed under premier’s prerogative power) faced allegations of sexual harassment. An external investigation was requested by premier and found that M had harassed 7 women. M took a financial settlement and resigned instead of being reassigned a position. M then claimed there was a breach of natural justice b/c he was not given access to docs and witnesses were interviewed without M or his counsel and said there should have been an oral hearing at which he could interview the complainants
• Oral hearing: Court applies the factors from Baker
- Nature of decision was discretionary (prerog power) so less procedural protections (Martineau) - Decision maker’s choice of procedures was investigatory not determinative (less procedural
protection) (Inuit Tapirisat)
• Refusal of access to documents rule:
- An investigator is not obligated to give every detail of what he receives but rather must only ensure that applicant has disclosure of the substance of the accusation against him.
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 bok 4 was found. A Committee met to decide on failures, and dismissed her without a hearing.
Majority (Laskin JA.):
• Oral hearing
- 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)
• Content of oral hearing
- should incl an opportunity to appear, make oral reps, and correct/contradict circumstantial evidence on which the decision would be based
Dissent (Finlayson JA.):
• 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)
III(5) Open Hearings (In-Hearing)
SPPA, s 9: Presumption in favor of openness and creates specific considerations that are to form the basis of any decision to proceed in camera in whole or in part.
• Decision to hold an in camera hearing is still left to the discretion of the tribunal
• Factors that tribunals consider: - Privacy of the victims
- Ensuring that witnesses will be willing to testify
- National security or commercial competitiveness (if these are issues) - Freedom of the press and other Charter rights (Pacific Press)
- Protecting the reputation of the accused (more common justification to keep in camera proceedings in professional misconduct hearings)
- Alternatives to in camera hearings: publication bans, testifying in private, etc.
III(6) Right to Counsel (In-Hearing)
SPPA, s 10: permits representation by counsel or an agent for parties to proceedings governed by the Act [recall exceptions]
• Even if SPPA does not apply, there is usually a right to counsel under (i) common law and (ii) the statute governing the procedure.
Re Mens Clothing Manufacturers: labour context. For decades disputes in Toronto’s mens clothing industry were resolved by arbitration w/o lawyers. After a particular grievance a TU wanted counsel
• No absolute right to counsel at CL
• Where a dispute is dependent on law (statute, arbitration agreement), whether counsel are allowed is determined by the words of that law
• If a person (NP or JP) is entitled to be represented, they are entitled to be represented by a person of their choosing
• Where JPs are involved, to deny the right to counsel would deny the right to select the agent of choice, esp a particular class of persons widely retained for such purposes in other industries
• If one party is entitled to counsel, the other must be ipso facto
Re Parrish: ship captain summoned before an investigator of a statutory board after crashing a ship. He appeared with two counsel but the investigator refused to admit them, even after allowing previous members of the crew, and the Cpt refused to testify
• Right to counsel required where words of statute, or its practical application, indicate
(i) Individual is subpoenaed, required to attend, and testify under oath with a threat of penalty- (ii) Absolute privacy is not assured and the attendance of others is permitted
(iii) Where reports are made public
(iv) Potential to be deprived of rights or livelihood
Howard v. Stony Mountain Institution: prison context. Hearing held to decide charges against a prisoner under the Penitentiary Service Regs. which could result in a loss of earned remission days and punishment in the form of solitary confinement
• At common law
- No absolute right to counsel – there is only a discretion on the part of the tribunal that can be exercised to allow a prisoner to have a right to counsel.
• Charter, s 7
- Creates a non-absolute right to counsel
- TEST: Whether a person has right to counsel depends on a non-exhaustive list of factors
(i) Circumstances of the case: the need for reasonable speed in making their adjudication and the need for fairness between the parties
(ii) Seriousness of the charge and of the potential penalty
(iii) Nature of the case: Is it a question of law (greater right to counsel) or fact? (iv) Complexity of the case: Are there any procedural difficulties?
(v) Capacity of the party to understand the case and present his defence himself.
- NOT a matter of discretion (as under CL) but a matter of right where the opportunity to present the case adequately calls for a right to counsel.
- But where the circumstances do not point to a breach of fundamental justice (eg change in terms of sentence), the effect of the law may may still affect residual liberty (not liberty per se but the conditions of liberty) and therefore require greater proc fiarness in the form of counsel
NB (MOH and Community Services) v. G.(J.): parent-child context. A policy under the Legal Aid Plan (under the Legal Aid Act) prohibited the granting of legal aid certificates in custody-order renewal proceedings. 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.
• 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:
(i) Seriousness of the interests at stake (directly proportional): obviously serious
(ii) Complexity & adversarial nature of the proceedings (directly proportional): procedure to resist application included adducing evidence, cross-examining witnesses, expert testimony etc (iii) Capacities of the individual (inversely proportional): intelligence, communication skills,
composure, familiarity w/ the legal system
III(7) Disclosure (In-Hearing)
• Definition: Disclosure to parties of info that the agency has about them (representations made and
evidence given)
• General Principle: A party is entitled to know what evidence and representations have been given
and is entitled to an adequate opportunity to respond (Kane v Board of Governors, Univ BC)
Access to Information Statutes
• Just b/c info falls under an exception from disclosure under freedom of info legislation does NOT mean that its disclosure will also be denied in proceedings to which the rules of natural justice and
procedural fairness apply, eg Access to Information Act (fed)), ‘Act is without prejudice to other laws governing access to information’
Crown or Executive privilege
• Common law Crown or Executive privilege was codified in the Canada Evidence Act - Crown can object to disclosure on the grounds of:
(i) A specified public interest (s. 37(1)) although Court can overrule this if public interest in disclosure outweighs the specified public interest (s. 37(2))
(ii) Disclosure would be injurious to IR/national defence or security (s. 38(1))
(iii) Information constitutes confidence of Queen’s Privy Council for Canada (s. 39(1)) - An application can be made to prevent disclosure (s. 37(3))
Other common law privileges
• Common law privileges not codified: solicitor-client privilege; adjudicative privilege Access to Agency Information
• Four arguments for disclosure of agency info:
- People should know about what gov/others knows about them - Facilitates party participation by enabling them to respond - Increases acceptability and accountability
- Officials may be more prudent in the quality of their reports if they are forced to disclose
• Four situations where disclosure is an issue:
(i) Agency collected info about the individual from another person and the individual wants the person’s identity
General rule: what is reasonable given the circumstances
(ii) Agency collected info on an individual and the individual wants that info
Re Napoli and Workers’ Compensation Board: N was injured at work and awarded 5% of total disability suffered. He appealed his case to Board. It declined to disclose medical reports on his file and denied his appeal.
- Whether disclosure is warranted at all depends on: (i) if credibility and issue (chance to cross-examine); and (ii) where the consequences are serious
- The extent of disclosure depends on: (i) what is necessary to answer the case against him (precise statement, where, when, and who); and (iii) policy rationales (sunlight likely to ensure greater care in preparing reports)
Charkaoui v Canada: C was a permanent resident. The Minister of Public Safety issued a certificate labelling him a security threat which could lead to lengthy detention and then deporation ito the Immigration and Refugee Protection Act. The scheme permitted deportation on the basis of confidential information that is not to be disclosed to the person named in the certificate or anyone acting on the person’s behalf or in his interest. He claimed a s 7 infringement
- The overarching principle of fundamental justice that applies here is that before the state can detain people for significant periods of time, it must accord them a fair judicial process: New Brunswick (Minister of Health and Community Services) v. G. (J.)
- In the context of a s 7 deprivation the aspects of proc fairness that must ALL be satisfied are (in other context which have to be satisfied will vary): (i) the right to a hearing before an independent and impartial magistrate; (ii) a decision on the facts and the law; (iii) the right to know the case put against one; and (iv) the right to answer that case.
(iii) Agency collected info about a business and other parties want disclosure (commercially sensitive info)
Eg. Anti-Dumping Act
- S. 29(3) prevents the disclosure of info by the Anti-Dumping Tribunal of the business in question to the public such that it will be available to competitors for use
- A hearing should still be held but evidence should be taken in camera (Magnasonic Canada v. Anti-Dumping Tribunal)
- Confidential briefs, documents and exhibits are made available by the Tribunal only to counsel who are appearing for parties represented at the hearings, and those counsel are required to give an undertaking not to reveal confidential info to their clients (Anti-Dumping Tribunal Study)
(iv) Agency may have material that it has created for itself and any party may want disclosure Eg. Staff studies / reports
- Staff of ADMs are meant to conduct investigations and studies necessary for the ADM to make fully informed decisions.
- General principle: most agencies take the position that staff reports are confidential and will not disclose them; Exception: it will be used against the person in a proceeding that will affect his rights in a substantial way
- Arguments for full staff document disclosure:
o Staff documents contain info that might assist parties in preparing their submissions o Fairness and impartiality of the agency is compromised when participants find out
that agency has received staff studies in confidence
o Public is entitled to have much of the information – accountability
o Reports are likely more well thought out and more carefully based on accurate information where disclosure
- Arguments for non-disclosure (not very persuasive):
o Ministerial responsibility would be undermined by disclosure of staff documents o Disclosure would serve to politicize the public service
o Having to disclose everything would result in undue delays o Staff will be less candid in its advice
- Recommendation by LRC:
o factual portions of staff documents should ALWAYS be open to public unless there is some ground justifying non-disclosure (i.e. confidentiality);
o advice of agency staff should NEVER be disclosed
- Ultimately: we have to determine whether the individual has the opportunity to meet the case against him or her
III(8) Official notice (In-Hearing)
• Definition: Official notice is where an ADM agency may, in making its decisions, use material that is
not introduced in evidence (i.e. extra-record evidence)
• Two types of facts:
(i) Adjudicative facts: a finding of fact concerning the immediate parties (i.e. who did what, where, when, how, and w/ what motive or intent)
- Adjudicative facts are those to which the law is applied
- Must always be supported by evidence / no official notice permitted (ii) Legislative facts: facts which help the ADM det the content of law or policy
- Ordinarily general in nature and do not concern immediate parties
- Will usually be det by legislation or case law but where could needs to develop law or policy, it may, but need not necessarily, resort to legislative facts outside the record
• The reasons we allow official notice to be taken of extra-record facts is not to promote fairness but to promote convenience
• Basic principle: Extra-record facts should be assumed whenever it is convenient to assume them
except convenience should always yield to the right of parties to have the opportunity to meet the facts that influence their case
Factors in favour of official notice Factors in favour of disclosure
Legislative facts Adjudicative facts
Peripheral facts Critical facts
Certain facts Uncertain facts
Township of Innisfil v. Township of Vespra: Town of Barrie applied to annex 3 adjacent townships to house a projected population. The amount of land was based on a formula, the use of which was approved by the gov/t. A dispute arose and at the hearing a letter from the minister was introduced as proving the required amount of land
• An ADM intending to use an independent, extra-curial decision of fact must give parties notice and an opportunity to respond to it
Lawal v. Canada (Minister of Employment & Immigration): after the conclusion of oral hearings, an immigration panel took official notice of a newspaper article. It was forwarded the applicant but the panel did not reopen the hearing. Panel relied on s. 68(4), Immigration Act that allows the panel to take notice of facts that may be judicially noticed & other generally recognized facts
• The material was not properly the domain of judicial notice, it was not generally recognized fact
III(9) Admissibility of evidence (In-Hearing)
• RULE: Agencies are NOT governed by formal rules of evidence used by courts unless some statutory
provision requires them to (and such provisions are rare)
• An administrative body’s rules of evidence will be determined by, (i) The body’s empowering legislation; or
(ii) The SPPA, ss. 15(1), (2) [basically includes everything but privileged info and info excluded by other statute
• Exception: Rules of natural justice may require an agency to abide by formal rules of evidence to the
extent that it allows a party to make his case (Miller v Min of Housing; Universite du Quebec v Larocque)
Armstrong v. RCMP (FCA, 1998): Armstrong was subject to a inquiry for unsuitability; RCMP handed in written evi and A did not cross-examine anyone. After the hearings phase, a sergeant wrote a memo to the Board and on that basis the commissioner confirmed her discharge. Issue was whether sergeant’s memo constituted new facts, opinions or material which Armstrong was not given an opportunity to dispute?
• A right to a hearing is triggered where there is an exercise of discretion on the basis of facts regarding the applicant and where he has not had an opportunity of stating his position with respect to those facts, which in the absence of refutation or explanation would lead to a negative decision.
III(10) Cross-examination (In-Hearing)
SPPA s. 10.1(b): A party to a proceeding may, at an oral or electronic hearing, conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.
Township of Innisfil v. Township of Vespra: issue was whether the municipalities could cross examine of the letter, ie that is was the correct determination
• Where the rights of a citizen are involved, SSPA, s 10.1(b) entitles him to a full hearing, ie incl cross examination
• Only in the clearest of cases (ie clear statutory language) will the exec be able to give binding policy directions on a tribunal
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)?
• 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.
- 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]
• Factors militating towards a right to cross-examine include: (i) where the evidence is contradictory or conflicting (ii) where there is an attack on a party’s credibility
III(11) Limits of the Trial-Type Hearing Thomas McGarity,
• Principle: Agencies should engage in formal trial-type hearings to enhance accuracy of factual determinations
• Limiting factor: ‘transaction cost’ (i.e. reduced admin efficiency and increased expenses) may outweigh any benefits derived from increased accuracy
• Factors for whether trial-type hearings are required: - Value of the interest affected
- Degree to which inaccurate decision would affect those interests
- Likelihood that formal fact finding will reduce uncertainty on a certain issue
• Trial-type procedure is NOT useful for enhancing the accuracy of policy and scientific determinations (it simply reveals the depth of disagreement)
Glen Robinson
• There is a general consensus that “policy” or “legislative facts” are not suitably considered in trial-type procedures (e.g. cross-examination and testimony) b/c they are pure & uncontaminated by questions, assumptions, opinions and biases
• This conclusion is INCORRECT
- Even legislative facts rest on general conclusions inferred from factual data and an evaluation of probabilities
- Trial-type procedures can be valuable in testing forecasts and generalized conclusions underlying policy decisions
• Advantages of subjecting policy decisions to trial-type procedures:
- allows one to probe inferences on which expert bases his interpretation - exposes possible bias or lack of sound foundation
- puts burden on agency to explain the assumptions & foundations on which its policy rests - prospect of having to justify policy decisions will result in more well thought out decisions
CC Johnston
• Recommendation: Where positions of the parties are clearly adversarial, (Telecoms Commission) should adopt trial-type procedures (e.g. cross-exam)
- Rationale: With a trial-type procedure, the parties are not restrained from fully presenting their case AND Commission is not deprived of evidence that is useful for decision-making.
• Disadvantages of using trial-type procedures: - Too time-consuming
- Reduce public participation b/c too intimidated by formal rules
III(12) Reasons (Post-Hearing)
Threshold of the Duty to Give Reasons
(i) Under statute:
• S. 16.1(3), SPPA: An interim decision or order need not be accompanied by reasons.
• S. 17(1), SPPA: A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefore if requested by a party.
(ii) At common law:
• There is can be an obligation on tribunals to give reasons for decisions (Canada v Baker)
• Situations where the obligation will be triggered
- Where the decision is of significance to the individual - Where there is a statutory right of appeal
- Where there is a right to judicial review
- The empowering statute otherwise provides for it
• Advantages of reasons:
- Get better decisions b/c decision maker will be under the obligation to set out all factors and outline their reasoning (reduces arbitrariness)
- Boosts party confidence in decision
- Better for appeal process and reduces burden on reviewing body - Ensures that the law is being applied correctly
- Allows precedent to be useful as guidance
• Disadvantages of reasons: - Hurts efficiency - Creates delay
- Adjudicators would not be candid
Once we pass the threshold question of whether there is an obligation to provide reasons, we move onto determine the content of the duty
Content of the Duty to Give Reasons
• Content of reasons:
- Reasons must reflect purposes served by a duty to give reasons, which include o To give a party a chance to affect the decision maker; and
o To limit the risk of error by the tribunal
- Reasons should be sufficient to be able to scrutinize them on judicial review
- If a decision involves discretion, then reasons should demonstrate the power to so choose and the factors relied on when exercising that discretion
- If a decision is based on certain facts, those facts and the evidence supporting them should be highlighted in the reasons
- If credibility of a witness is an issue, then the tribunal should show why it did or did not think the witness to be credible in its reasons
• Form of reasons: tribunals can use various types of explanations and allow them to be used as reasons
• Problem: Canada v Baker implies that the ‘reasons’ requirement may be satisfied in an informal or
even ad hoc fashion, which results in the duty to give reasons becoming symbolic (Sossin) - In other words, what can count as reasons (content) is too broad
- Result: the erosion of the duty of fairness in admin processes
- Example: Ticking the box “denied” on an application can constitute reasons through inference (Liang v. Minister (Immigration)
• Solution: 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
- Case law now shows more substantive rather than symbolic application of the reasons requirement
Suresh v. Canada (Minister of Citizenship and Immigration)
• Reasons must articulate and sustain the finding that individual will not be subject to torture
• Reasons must articulate why the individual is a danger to the security of Canada
• Reasons must come from the decision-maker (and not the subordinate official like in Baker)
Via Rail Canada Inc. v. National Transportation Agency: Wheelchair athletes traveled w/ VIA and according to the tariff, people who needed to assist them traveled for free. The athletes encountered significant obstacles wrt accessibility of VIA’s services. A complaint was made to National Transportation Agency which determine that allowing an attendant to ride free did not relieve VIA from its responsibility to ensure that passengers with disability can board and de-board its trains.
• RULE: Duty to give reasons is only fulfilled when the reasons provided are adequate
• Test for adequacy: Do the reasons provided reflect the purposes for which a duty to give reasons
was imposed?
Purposes are reflected when:
- The decision-maker sets out findings of fact and the evidence on which those findings are based. - The reasons address the major issues.
- The reasoning process is set out & reflects the consideration of relevant factors.
Effect of Breach of the Duty to Give Reasons
• ALL REMEDIES ARE DISCRETIONARY
• Remedies NOT available IF: (i) Defect in reasons is technical
(ii) Court finds no substantial wrong or miscarriage of justice
• Remedies available for breach of duty to give reasons: 1. Decision is set aside if:
(a) Decision maker misinterpreted the legislation or committed some other error of law (b) Court concludes, on review, that the tribunal failed to consider relevant issues
o Exception: if the reasons show the tribunal considered the most important reasons
