Administrative Law Notes http://www.scribd.com/doc/90025720/1/Administrative-Law-Summary http://www.scribd.com/doc/64348006/Administrative-Law-NCA-Summary STUDY TIPS
Decisions of Legislative Nature – PER MICHELLE Krever Commission – PER MICHELLE
Part of the problem is that a lot of you are overthinking Admin. If you look carefully at the sample exam, you'll notice something that is very apparent in the actual exams administered - that is, there are three fact patterns and one focuses on procedural administrative law, another on substantive
administrative law, and a third that will likely include something about bias, charter challenge, or otherwise similar content.
Once you are able to identify procedural vs. substantive problems, the rest is easy. When analyzing a procedural question, look at the Baker elements and carefully read the Judge's analysis. Most
problems will result in the victim having right to some procedural fairness.
When looking at the substantive elements, organize your thoughts carefully - does the person have any right to due process at all? If so, what level? And after determining what level, focus on how that person's rights should be applied to the fact pattern. There will always be a bit about bias or a charter argument. Find it and use the text book to find out what type of bias it was, speak clearly and
concisely about whether an argument exists, and make a confident conclusion about it. There is a lot of fluff in the text books intended to take up your time. Once you learn what the examiners are looking for, you can focus on that and ignore the rest of the nonsense. You will realize that your exam will consist about 80% of the Baker and Dunsmuir elements, and the cases that led up to, or were decided, on the basis of this case law.
Canadian law is somewhat archaic in that many of the textbooks and reading materials are published every few years, which is in contrast to American authorities which are published yearly or twice yearly. This means that a lot of things to do with two standards of reasonableness (hint -only 1 now exists) are still in the texts and this causes some confusion. Don't waste your time with trying to explain to the examiner the difference; rather, focus on the IRAC method religiously. I cannot stress organization and writing style. You could have a strong grasp on the case-law, but if you cannot argue your position with confidence, you'll fail. I would bet that writing style and organization are the deal breakers with NCA examiners, as your first impression is the only one you'll make. If your English is weak or you are unable to put your thoughts on paper properly, spend a lot of time taking the practice exams and reviewing the outlines so you know exactly how your answer will flow.
Lastly, walk into the test knowing that there are only a few ways that a question can be asked when it comes to admin law. There will always be a person or entity who was denied a certain benefit or right. There will always be a question on procedural and a question on substantive law.
The fact pattern will always be fashioned in a way that it is difficult to determine whether standard of review is correctness or reasonableness because it could go either way, so look closely for a
statement or fact that sways you to the correct SoR (remember, choosing the wrong SoR can fail you). And also remember, there will be a question which asks you whether a person or entity has any rights in law to some type of bias/constitutional challenge. Learn the different types of bias and apply it correctly, and learn the jurisdictional limitations that tribunals must abide by when hearing constitutional challenges.
Hope that helps. Once you guys stop over-thinking admin law and start focusing on the actual elements of the subject, you'll realize that it's an area of Canadian law that is well developed and relatively easy to conquer. When I was studying for it, I was overwhelmed because I could not separate procedure and substantive law properly, but with some time and resources I was able to figure it out quite well.
Steven: The syllabus is extremely frustrating because it does not provide students with any structure. My suggestion would be to break down your outlines into two major categories: Procedural and Substantive.
For each category, ask yourselves (a) whether any procedural/substantive rights exist; (b) at what level? and (c) and whether the victim received enough process or whether more should have been given. Again, HEAVILY rely on the Baker analysis for matters of procedural fairness, even step-by-step as outlined by Justice L'Heureux-Dubé, whose analysis is extremely easy to follow. One easy way to identify procedural fairness problem is where there is no "finality" to the issue. Procedural questions mostly center around matters of how a certain thing was done, such as how someone was fired, how a benefit was revoked, or along those lines. Procedural questions usually look at whether a particular person received enough opportunity to challenge a decision or whether the decision was based on sufficient research and opportunity for the victim to be heard, etc.
In contrast, substantive questions mainly involve a final decision by a tribunal, and the party involved is looking to have that overturned by a court. First, ask whether there is any basis for review at all: that is, are there any mistakes in fact or law that are egregious enough for court intervention? If so, what standard of review? Look to the Dunsmuir and supporting cases to determine this.
Finally, will the court overturn the decision at all? Analyze the case-law and determine whether the error was big enough to warrant court intervention. Most substantive issues will be a standard of reasonableness, because most of them are typically errors of fact or mixed fact and law. You will know when a correctness standard applies when you see matters of law that are highly important to the legal system as a whole or involve a constitutional question (which is rare.) If anyone has any specific questions about admin, let me know. I'm no expert, but I did put a great deal of effort into learning it at the expense of my other exams, and I'm happy to share my experiences.
Introduction Primary questions:
(a) The circumstances under which governmental decision-makers are subject to an obligation of procedural fairness to those affected by their decisions, and, where applicable, the content of that obligation.
(b) The extent to which the substantive decisions of assigned decision-makers are subject to merits scrutiny by the courts in the name of jurisdiction or other principles of substantive review such as error of law, error of fact, and abuse of discretion, and especially the standard of review that reviewing courts bring to bear in exercising that constitutionally guaranteed capacity.
(c) The remedial framework within which the superior courts, both federally and provincially, exercise their review powers.
(d) The bases upon which the courts will not only exercise direct powers of review but also provide monetary compensation for wrongful administrative action.
(a) A procedural fairness (or more generally, procedural expectations that administrative decision-makers must meet);
(b) substantive constraints (or more generally the sorts of substantive errors administrative decision-makers must avoid); and
(c) challenging administrative decisions and remedies on judicial review (or more generally, the relief available to a person who wishes to challenge an administrative decision and the procedure to be followed in seeking this relief).
Procedural Fairness
2. Sources of Procedural Obligations
(a) Enabling Legislation (i.e. statute sets out the procedural expectations). See Sngh
(b) Sub-ordinate Legislation (i.e. regulations and rules) – note that there is a risk that persons making the rules and regulations don’t meet expectations or wishes of legislature. There are mechanisms of accountability and scrutiny to ensure this doesn’t happen:
(i) Legislative Scrutiny - - regulations must be approved by legislature once approved (ii) Public Consultation when drafting regs/rules
(iii) Judicial review – e.g. compliance with Charter or other constitutional instruments, ultra vires, compliance with common law (in absence of express language to the contrary).
(c) Policies and Guidelines – “soft law” set out by the relevant administrative decisionmaker. (d) Procedural Statutes – set out coming procedural standards. E.g. Alberta Administrative Procedures and Jurisdiction Act or BC Administrative Tribunals Act
(e) Common Law – a party affected by the administrative decisionmaker is entitled to be heard by that administrative decisionmaker in an impartial and independent hearing. Derived from rules of “natural justice” which imposed on tribunals exercising judicial or quasi-judicial functions, trial-type
procedures. Concepts of audi alteram partem (the decision maker must “hear the other side”) and nemo judex in sua causa (decisionmaker must not be a “judge in his own cause”). Today, it applies to a much broader spectrum of decisions.
(i) Cooper vs Board of Works (1863) – Builder had to give 7 days notice of intention to build under the statute and if not, the Board of Works had the right to tear down his building. Court ruled that he needed opportunity to be heard – particularly as his right was property right.
(ii) After this, English Courts willingness to impose hearing requirements on
decisionmakers became contingent on the nature of decision making power – judicial or quasi-judicial vs administrative decisions. This became untenable and then in 1964-1970 courts started reviewing administrative decisions as well.
(iii) Nicolson v. Haldimand-Norfolk Regional Police Commissioner (1979) SCC – Statute said that certain procedures must be followed before firing a constable of over 18 months. In this case the person had been constable for 15 months and was no procedures were followed – he was discharged without being given an opportunity to make submissions. Court ruled that just because he wasn’t entitled to the notice and hearing required under statute, that didn’t mean he had no protection at all. He must be treated fairly, not arbitrarily. He should have been told why his services weren’t
required and given an opportunity to respond. Then, after hearing his response, the Board can decide on what action to take (in good faith).
Before this decision, the “duty to act judicially” was thought to apply only to
tribunals rendering decisions of a judicial or quasi-judicial nature, to the exclusion of those of an administrative nature. Nicholson has made the distinction less important – since the duty to act fairly and duty to act judicially have their roots in the same principals of natural justice.
(iv) Expansion of the duty of fairness to areas of administrative decisionmaking (such as prisoners rights) that had previously escaped judicial scrutiny for compliance with rules of natural justice.
3. Procedural Obligation Triggers (Knight “Three-Prong” and the Concept of “Legitimate Expectation”)
Where is a given procedural obligation triggered?
If the procedural rule comes from legislation, the answer to the trigger question is in the legislation itself.
If the procedural rule comes from “general statutes about procedure”, they contain their own triggers. So you need to be careful to read that legislation if it applies to your decisionmaker. (Make sure the statute does apply to your decision-maker. Also check if a provincial general procedural statute can ever apply to a federal administrative decision-maker.)
Two triggers for common law procedural fairness:
(a) what we can call the Knight v. Indian Head (three-prong) trigger; and (b) legitimate expectation.
Where the requirements of these triggers are met, then procedural fairness is owed by the
administrative decision-maker. What that means in practice is a more complex discussion involving consideration of the content of the procedural fairness.
Pay attention to some of the exceptions and constraints on the triggers as well. So, for legitimate expectation, note the courts views on procedural versus substantive promises. For the Knight trigger, the readings talk about final versus preliminary decisions (and the related issue of investigations and recommendations). Note also exceptions to this exception – SEE Grange J application of test in Abel
Knight v. Indian Head School Division No. 19 (1990)
A majority of the Supreme Court recognised that in dismissing its director (who held office at pleasure), a school board was bound by duty of fairness. Extended fairness beyond domain of office holders dismissible only for cause. Also set down lines of a new threshold for duty of fairness based on distinction between decisions of a legislative and general nature and acts of an administrative and specific nature. Concept of procedural fairness as a common law right introduced.
FACTS – board of education dismissed a director when he refused to accept renewal of contract at a shorter term than the original. Director alleged wrongful dismissal. Court found that board did not need to show cause for dismissal under contract or Education Act. Director also argued he was entitled to procedural fairness. Majority of the Supreme Court agreed but found that the requirements
of procedural fairness were met. Minority said that no duty of fairness was owed to the director. Board of education’s appeal was allowed.
THREE PRONG TEST per L’Heureaux-Gube J (for the majority of the Supreme Court): 1. Nature of the decision to be made by the administrative body:
(a) Administrative vs. Legislative use of power - Administrative powers attract procedural fairness while legislative powers do not
(b) Final decision maker- Preliminary or interlocutory decisions don’t invoke procedural fairness
2. Relationship existing between that body and the individual:
All we are concerned with, is whether the body is exercising a power stemming from a statute or prerogative power.
3. Effect of that decision on the individual's rights (privileges / interests)
Low threshold requiring only that applicant have an interest and that it be impacted If all of these criteria are met then procedural fairness is triggered and the court will decide what procedures the applicant is due. But note that if the statute specifically excludes procedural fairness, then the court has no choice but to follow the legislature’s intent.
Basic requirements of the duty to act fairly is to give reasons for dismissal and a hearing. Note that every administrative body is master of its own procedure and therefore you must allow administrative bodies to work out a system that is flexible, adapted to their needs and fair – NO need to make it a court process.
Dissent (Sopinka for the minority of the Supreme Court): No duty of procedural fairness because the employer cam terminate employment without cause and without giving any reason. In his view, the correct approach is to examine the stature, regulations and contract to determine whether the
respondent has brought themselves within the exception to the general rule that an office terminable at pleasure does not attract a duty of fairness – i.e. the governing instruments must specifically or by implication point to a duty of fairness.
Note – Dunsmuir v New Brunswick changed the law re procedural fairness applicable to public office holders. Where a public office holder’s employment is governed by an employment contract, disputes re dismissal must be resolved according to terms of the contract and any applicable statutes and regulations. I.e. a public authority that dismisses an employee pursuant to an employment contract is not subject to an additional public law duty of fairness. Remedies of employee are only contractual. Reasons:
1. hard to determine in practice if a position had a strong enough “statutory” flavour
2. public law remedy of overturning the dismissal and reinstating employee (who is entitled to accrued salary and benefits from time of dismissal to courts order of judicial review) is less principled than private law remedy of proper notice and pay in lieu of notice because the amount of relief depends not on employee’s situation but length of time to resolve the judicial application.
I.e. common law entitlements of notice period, salary in lieu and wrongful dismissal claim provide enough protection.
1. where the public employee is not protected by an employment contract 2. where the office-holder is expressly subject to summary dismissal
3. where the duty of fairness flows by necessary implication from the statutory power governing the employment relationship – e.g. statute provides for notice to be given to employee of a motion to dismiss.
Martineau v Matsqui Inmate Disciplinary Board [1980]
This case applied the principles set out in Nicholson in a prisoner rights context – inmate disciplinary board procedures.
Re Webb and Ontario Housing Corporation [1978]
Webb was a low income tenant in a building owned by Ontario Housing Corporation and managed by Meridian Property Management for OHC. After 3 years, Meridian recommended terminating the lease because of problems caused by Webbs kids. OHC officials and its board of directors agreed and an application for termination of her lease was brought under Landlord and Tenant Act. Webb applied for a review of the decision.
Three Arguments (a) Statutory Powers Procedure Act 1971 applies to a meeting of the directors of OHC when considering terminating a lease, (b) if the Act doesn’t apply, rules of natural justice apply as they were conducting a judicial or quasi judicial hearing and (c) duty to act fairly as Webb had a “legitimate expectation” she would be treated fairly and this expectation was not met.
Judge held directors were not a tribunal exercising a statutory power of decision under the Ontario Housing Corporation Act where it was required to give the parties an opportunity for a hearing. Determination to terminate tenancy does not fall within Statutory Powers Procedure Act 1971. He also dismissed argument (b).
Re argument (c) – case is important because it distinguishes between an applicant for subsidized housing and someone already in subsidized housing. Decision by OHC to grant Webb subsidized housing was not one that could be subject to procedural fairness. Once Webb became a tenant, she qualified for and acquired a benefit. What is at issue in these cases is what it is appropriate to require of a particular authority in the way of procedures given the nature of the authority, the nature of its power and the consequences of the exercise of the power on the individual affected and the nature of the relationship between the authority and the individuals affected. Judge MacKinnon said that in his opinion OHC, in exercising power of termination and depriving Webb of benefit of lease was, in the circumstances, required to treat her fairly by telling her of case against her/complaints and giving her an opportunity to answer. Serious adverse effect/danger of losing an important benefit with no opportunity to answer the case against her would be unfair. ON FACTS SHE WAS TREATED FAIRLY – PLENTY OF WARNINGS.
HOLDERS OF STATE ASSISTANCE ENTITLED TO PROCEDURAL FAIRNESS BEFORE IT IS CUT OFF.
APPLICATION FOR LICENCE:
Hutfield v Board of Fort Saskatchewan General Hospital District No. 98 [1986]
Dr H applied to be appointed to medical staff of a hospital. Hospital board had statutory power to make bylaws and gave it responsibility for hospital’s affairs. By-laws said that applications for appointments had to be sent to the College of Physicians and Surgeons of Alberta for its
recommendation and to the chief of the hospital’s medical staff and to its appointments committee. College approved Dr H but board rejected him. He applied again, college not consulted and appointments committee gave an adverse oral recommendation. DR H asked to appear before the board when it considered the application but board refused.
Judge McDonald noted that relief had been granted in past for zoning or development permits on basis that decisions impacted on common law right to own land. Also noted there was case law for judicial review where there is a “legitimate expectation” of obtaining permission sought rather than a mere hope of success or benefit unless certain adverse findings are made against him.
This case makes the same distinction as Webb re procedural fairness on extinguishment of existing rights vs expected standards of procedural fairness in the case of an application for permission or consent not previously enjoyed. It is not a distinction founded in principle – at best the source is a mixture of historical accident and a misconception that the remedy of judicial review (certiorari) and stds of natural justice ought to apply only where the conduct of the authority exercising the public duty determines rights in the sense of a right to which there is a corresponding obligation. This notion NO LONGER governs in light of :
1. recognition that courts will protect interests as well as rights
2. recognition that certiorari is available where there is a duty to act fairly (and not just judicially)
3. where there is a duty to act fairly, the content of the duty varies from one situation to another 4. artificiality of the distinction drawn in the recent English cases that have pushed frontiers of
judicial review and procedural fairness out but limited them on grounds (“legitimate expectation” and “Slur”) that do not reflect a principal that can withstand scrutiny.
Board has no duty to grant hospital privileges to Dr H. He doesn’t have a “legitimate expectation” of being granted hospital privileges – at best he had a hope of benefitting from the boards decision. But his professional interests would be affected by the decision. Also, if the committee recommends that he be denied hospital privileges, it infers that it found that his credentials, ability, experience was not up to good enough – amounting to a “slur”. Also, he was a local Dr, practicing in the district – refusal limits his patients. So held Dr H’s interests were affected sufficiently directly and substantially that, if procedural fairness not complied with by hospital board, then certiorari is available.
Board must give reasons for its decision and decision was invalid because the appointments committee didn’t give a written report.
c.f. McInnes v Onslow-Fane – boxing manager denied licence even though he had held various other forms of licence from the British Boxing Board of Control.
Note also in the context of licence renewals, the longer a licence held, the greater the interest in renewal and stronger the entitlement to procedural fairness. FAI Insurances v Winneke (1982). Therefore, a fisherman entitled to procedural fairness even though statute stated that licence renewal was in the absolute discretion of the minister Everett v Canada (Mister of Fisheries and Oceans) (1994)
INVESTIGATIONS
Traditionally the court would not apply procedural fairness – e.g. Guay v Lafleur (1965) – person appointed to make tax investigations refused a subject’s request to be present when the investigator examined witnesses. Court ruled it was purely investigative – no decision or adjudication so no procedural fairness.
Doctrine changed in England in 1970s In re Permagon Press Lord Denning decided that the subjects of an investigation were entitled to see a copy of the report. Inspectors must act fairly.
The ARB conducts reviews of persons found not guilty of crimes b/c insane so they could make recommendations to the Lieutenant Governor. So no binding authority rests with ARB. Lawyers for patients requested copies of files and the chairman refused on the grounds that he didn’t have
authority.
Grange J said that the findings of the board were of utmost concern to patients – their only chance of release. Applied De Smith’s (an academic) test:
(a) degree of proximity between investigation and decision (b) exposure of the person investigated to harm.
He said that although Nicolson and Webb didn’t apply to non-binding reports, they reaffirmed and perhaps extended the duty of fairness required of persons or bodies exercising power even though the exercise of that power might be classed as administrative rather than judicial or quasi-judicial. Is a person’s entitlement to procedural fairness exhausted at the recommendatory level or can they make a further claim for procedural fairness from the executive official to whom the recommendation or report is made? Conway v Ontario (Attorney General) (1991) held there can be continuing
obligations of procedural fairness on the lieutenant governor – not necessarily an in person hearing but access to relevant material and also make written submissions.
Not all recommendatory or investigative functions will attract an obligation of procedural fairness - L’Heureaux-Gube J in Knight v Indian Head confirmed this saying “decisions of a preliminary nature will not in general trigger the duty to act fairly”.
Abel gives a useful test for discerning the exceptional cases in which the duty will be triggered. Dairy Producers’ Co-operative Ltd. v Saskatchewan (Human Rights Commission) [1994]
Sexual harassment complaint. Commission appointed and officer to investigate and provide a report. Company informed of complaint but not provided details of the complaint. Investigator found there was probable cause to believe there was an infringement of the Act. Settlement attempts failed and a board of enquiry established. Company applied to court to quash the establishment of the board of enquiry and the report that there was probable cause – application based on breach of procedural fairness rules.
Court held the investigating officer had no duty to act fairly – she had no power to affect rights of the company. Next step was settlement negotiations – these did not determine the rights of the company. Only after the settlement negotiations were unsuccessful did the Commission have the right to set up the board of inquiry. At this stage there was a duty to provide company with substance of the evidence against it.
The fact that the company proceeded with settlement negotiations rather than bringing a complaint about the conduct of the Commission and investigator amounted to a waiver of its right to object (if it even had one).
No breach of procedural fairness by Commission or investigator. Masters v Ontario (1994)
Unfairness allegations against incvetigators appointed by premier of Ontario to report on allegations of sexual harassment made against the agent general of the government of Ontario in New Yorl. Court held that investigators owed Masters a duty of procedural fairness in the conduct of the inquiry though not one that amounted to a full trial type hearing. Duty fulfilled event though Masters wasn’t given access to questions asked of interviewees or names of those conducting interviews or
notes/transcripts of interviews. Enough to be given a summary of the allegations and opportunity to interview witnesses himself.
Irvine v Canada (Restrictive Trade Practices Commission) [1987]
Investigation did involve some participatory rights for those affected. Dairy Producers makes it clear that where stature only establishes an investigative capacity , there much more of a possiblity that the courts will see this as being the equiv of police investigative powers not giving any rise to hearing entitlements on the part of those under suspicion.
EMERGENCIES
Re Walpole Island First Nation PF won’t apply where it’s an emergency and decision-maker must act quickly and procedural standards will have to be set aside.
R v Randolph [1966] Court held that an interim order withdrawing mail services to an individual could be made without hearing when the statutory basis for decision was belief that mail was used for criminal purpose. Impt that it was interim only – open to reassessment on a subsequent hearing. Court influenced by the explicit provision for an after the event hearing.
Cardinal v Director of Kent Institution [1985] - Because of apparently urgent or emergency nature of the decision to impose a segregation (of prisoner) in the particular circs of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision.
LEGITIMATE EXPECTATION
Basically you can also get procedural fairness if there’s a legitimate expectation of being treated fairly (i.e. public official to keep their word). If you have a delegate make such a promise, can you make them fulfill it?
Old St. Boniface Residents Assn. Inc. v Winnepeg (City) [1990] Court refers to Hong Kong v. Ng Yuen Shiu
When a public authority had promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.
Court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation.
Reference re Canada Assistance Plan [1991]
Federal Assistance Plan – Federal Govt to enter into agmts with Provincial Govts to share costs of provincial welfare. Section 8 of Plan provided that the agmts would continue as long as the relevant provincial law was in operation by consent or unilaterally by a party on one years notice. Fed Govt introduced a bill to limit the increase to contribute to BC/Alberta/Ontario below the figure provided in the Plan and the agmts entered into. No prior notice given. \
Could Fed Govt be precluded from bringing bill by virtue of legitimate expectation that agmts would only be amended by consent. Sopinka held that there is no support in Canadian or English cases for the position that doctrine of legitimate expectations can create substantive rights. Also, rules governing procedural fairness do not apply to a body exercising purely legislative functions.
BC argued that nothing stops legislature from legislating but the Fed govt is constrained by legitimate expectation from introducing bill to parliament. Court said this ignores the role of executive in legislative process - - cabinet is the buckle that joins legislative part of state with executive part. Legitimate expectation cannot constrain executive.
Sopinka rejects doctrine of legitimate expectation being anything other than a source of procedural claims – It never generates a claim to a substantive outcome – only hearing entitlements.
Sunshine Coast Parents for French vs Sunshine Coast (School District no. 46) (1990) Elimination of French immersion programme.
Court finds that the board is exercising a broad policy decision and thus it is legislative and legitimate expectation does not apply to legislative decisions. While the case would normally end there, the Court finds that because the board themselves imposed a constrained regulation on itself (mandatory consultations) they should be bound by that. In effect the board has constrained its own legislative power. So, legitimate expectation should attach. At the end of the day, the parents end up losing because they weren’t aware of the consultation guidelines and therefore there was no detrimental reliance and there could not have been legitimate expectation.
Furey v Roman Catholic School Board for Conception Bay Centre (1991)
A school was closed without any notice and parents go to court saying that guidelines were not followed, that they were not given public notice. Court said that, since the board in the past had used the guidelines for school closing decisions, they should apply. On appeal, decision was reversed since court found there was no reliance (affidavits reviewed by court did not show evidence that the parents believe that past practice would be followed in this instance). Where an official guarantees an outcome rather than a procedure, legitimate expectation would not apply: “legitimate expectation creates procedural, not substantive rights”.
Attaran v University of British Columbia (1998)
Failure by uni to follow its consultation policy as a prelude to increase student fees. legitimate expectation doctrine did not apply because the procedure was new and only used once previously, it was an instruction to staff not a representation to affected constituencies. Very few of the student body knew about it at the time.
Mount Sinai Hospital v. Québec [2001]
Minister promises to regularize license if the hospital relocates. The hospital relocates, but the new Minister refuses primarily on the basis that to issue the license would be to commit the govt to additional financial support, something that was not in govt’s priorities. Hospital seeking mandamus to compel the minister to issue the revised licence.
SupCt refused to make the order bc doctrine of legitimate expectation couldn’t be used to achieve substantive outcomes. CA accepted this but ruled that hospital entitled to revised license on basis of public law estoppel. SCC (Bastarache) refused to deal with issue of public law estoppel and legitimate expectation, but case turned on fact that earlier ministers had made decision on basis of condition to relocate. This was decision that current minister did not have basis for overturning (no evidence supporting claim that grant of licence would involve any commitment of additional funds). SCC (Binnie and McLachlin, concurring) reached same solution, but on basis that minister’s decision was patently unreasonable and failed to act in procedurally fair manner.
Binnie J on doctrine of legitimate expectation:
• Hospital’s argument that LE can be used for both procedural and substantive protection is based mainly on English cases. The Canadian case law is against this position.
• Distinction that English law’s approach to doctrine of legitimate expectation does give substantive remedies, but that’s bc their doctrine of legitimate expectation performs functions that in Canada are kept distinct. There, policy is not ordinarily open to judicial review, but courts will ask whether the application of the policy to an individual who has been led to expect something different is a just exercise of power (ie if the frustration of the expectation is so unfair as to be a misuse of the authority’s power).
• In Canada this level of judicial intervention in govt policy is inappropriate unless it’s a Charter claim.
• Canadian cases differentiate for analytical purposes the related concepts of procedural fairness and the doctrine of legitimate expectations.
1) The availability and content of procedural fairness is driven by nature of the applicant’s
interest and the nature of the power exercised by the public authority in relation to that interest.
2) Doctrine of legitimate expectations looks at the conduct of the public authority in the
exercise of that power including established practices, conduct or representations that can be
characterized as clear, unambiguous and unqualified. Expectations must not conflict with the authority’s statutory remit.
• The focus is on promoting “regularity, predictability and certainty in govt’s dealing w/ the public.” • If the Court is to give substantive relief, more demanding conditions precedent must be fulfilled
than are presently required by the doctrine of legitimate expectations. Two such limitations are : 1) Purely ministerial decisions on basis of public policy give no procedural protection, unless
there is an abuse of discretion
2) Public bodies exercising legislative functions may not be amenable to judicial supervision. • Minister’s decision here set aside through ordinary rules of procedural fairness, and so there’s no
need to resort to doctrine of legitimate expectations (which would only afford procedural, not substantive, relief anyway).
Notes
Binnie J concedes that there would be cases where it is difficult to distinguish procedural and substantive rights.
We want to allow minister and their delegates to be able to establish policy of general nature and so policy decisions that when implemented will have certain outcomes will not be subject to JR. Whereas particular applications of the policy may be subject to review or in certain circumstance be categorized as procedural.
Requirements for Legitimate Expectation:
1. A promise or representation from a delegate (an expectation of a hearing arising out of express representations or a practice of holding such hearings or a combination of the two)
2. To proceed in a certain fashion
3. (possibly) Resulting in detriment when promise is broken to a person who relied on the promise Does not apply to:
1. Legislative decision
2. Promises that conflict with statutory duties
4. Procedural Obligation Triggers (Legislative Decisions and Emergencies)
Common law procedural fairness rules may also fail to be triggered where there are emergencies, and also where a decision is said to be of a “legislative” nature. Be wary of the latter; it is a very
amibguous concept. In its clearest form, it means no procedural fairness where an administrative decision-maker is introducing, e.g., a regulation (that is, a form of delegated legislaton). But a “legislative decision” means more than this – boiled down to its essence, it can be a decision that is sufficiently general, and not particular to or focused on a reasonably narrow subset of persons. Exactly what this means you need to contemplate in looking at the readings. And you need to
appreciate that the general rule – no procedural fairness where decision is legislative in nature – is itself subject to exceptions.
Asks the Who and the What…
Who? Is decision maker is the Minister or a legislative body? What? Is the question posed legislative in nature or is it policy? • Inuit Tapirisat Cabinet decision
• Homex Realty Municipal decision • Authorson Federal legislation
• Wells v Newfoundland Provincial legislation • East York v Ontario Provincial legislation Martineau v. Matsqui Inmate Disciplinary Board (1980)
The Rule of Thumb comes from Dickson J in Martineau (followed by L’H-D in Knight):
A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.
CABINET DECISIONS:
Canada (Attorney General) v. Inuit Tapirisat of Canada [1980]
• In 1976, Bell applied to increase their rates. Candaian Radio-Television and Telecommunications Commission (CRTC) has authority to approve rate increases and does so
• Governor in Council has discretion to vary or rescind such orders by CRTC.
• Inuit Tapirisat (IT) intervened to CRTC to oppose part of Bell’s application. When case went to Cabinet, IT not given opportunity to make submission on their own behalf. Minister dimissed appeal.
Claims:
• IT argue hearing should have been given, and had it been given it did not comply with principles of natural justice.
• Crown argues that IT had already had opportunity to make submission to Bell and CRTC. Also, decision of Cabinet was of legislative nature, and statutory provisions did not provide procedural safeguards and so no protections were owed as a matter of law.
Issue:
• Does the Governor in Council have a duty to observe natural justice, or even a duty of fairness, when reviewing regulatory decisions?
Holding:
• NO (Canada/CRTC/Bell wins) Estey J for the SCC:
• Court is to look at the statutory provisions for procedural requirements for Cabinet to provide notice to groups such as IT.
• Statute delegates to CRTC the function of approving rate hikes with directives on standards to be applied. Secondary delegation of this function is to the Governor in Council, but without any
standards or guidelines.
• Cabinet’s decision to give a hearing to IT is not an obligation, but a discretion that can be taken. This b/c Cabinet is at the high end of policy making spectrum. Also b/c this kind of decision is a political-policy one since it will potentially affect all inhabitants of Canada and must factor competing interests
• To provide hearing to reps of Inuit T would mean potentially to provide hearing to anyone and everyone with complaint for the rate increase.
• The duty to observe procedural fairness need not be express, but this doesn’t mean it will be implied in every case.
• Statute gives Governor in Council complete discretion provided he observes its jurisdictional boundaries, this means there is no need to hold any kind of hearing or even acknowledge the receipt of a petition.
Considerations would be different if the executive had been assigned a function performable in past by Parl. itself and the subject-matter is not an individual concern or a right unique to the petitioner. Where the executive has been delegated a legislative function, and it’s not aimed at particular cases, there is no ground on which the common law should supply procedural fairness.
NB:
- Rulemaking and discretionary powers are not subject to procedural fairness - Discretion exercised by Cabinet not subject to procedural fairness (NAPO)
- Certain sort of broad, policy-based discretion are excluded from procedural fairness (NAPO) MUNICIPAL BY-LAW
Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011 (Ont.)
• Dispute between municipality and Homex about obligation to install services in subdivision owned by H and who would pay for the services.
• The municipal authority passed a by-law that made it impossible for Homex to sell any of its parcels of land without the consent of the Municipal Council (Homex not allowed it to convey (ie alienate) property. The by-law was passed subject to Planning Act.
• Important to note that this wasnt by-law that affected the entire municipality but exclusively the sub-division where Homex was devg lots for sale.
Claims:
• Homex sought judicial review the By-law. What they complained of, amongst other things, was that the effect of the By-law was tantamount to an expropriation (or quasi-expropriation) and the loss of an important entitlement of it. Homex compained that they were neither given notice nor
opportunity to appear before council to dispute the by-law.
• Municipality argued that had they given Homex notice, H would’ve built in checkerboarding manner. This would have precluded the municipality from in effect passing a by-law which would have affected Homex and the area it planned to develop.
Issue:
• Was Homex entitled to hearing given By-laws expropriating effect? Holding:
• NO. (Municipality wins and By-law is upheld)
EsteyJ for the majority (Laskin CJ, Martland, Beetz and Chouinard JJ):
• Homex not entitled to relief bc of the inconsistent and evasive conduct of its principals.
• However, under normal circumstance, the Council should provide prior notice. I.E. PASSAGE OF MUNICIPAL LAW IS SUBJECT TO A DUTY OF FAIRNESS
• While the passage of the by-law stripped Homex of its right of conveyance, it is also clear that the balance of the township may also be affected by the action of Homex if they are successful in avoiding the consequences of the by-law. So there are competing private and public interests at play.
• Concludes that action taken by the council was not in substance legislative but rather quasi-judicial in character so as to attract the principle of notice and the consequential doctrine of audi alteram partem.
• Agrees w/ Dickon that hearing requirement was not satisfied but argument about conduct was accepted
Dissent of Dickson J (and Ritchie J):
• Cml recognizes that before a public body can limit or abrogate the property right of citizens, it must give the individuals concerned the right to be heard. This is long-standing principle of PF.
• Where statutory body seeks to limit property rights, Courts will imply the right to be heard unless there is an express declaration to the contrary. No such declaration here, Homex should have been heard.
• The Municipality argues that it was exercising a ‘legislative function.’ Dickson J disagrees. The right to a hearing does not spring from there being competing groups, but from the fact that the by-law interferes with the property rights of one owner. The presence of a compelling public interest doesn’t diminish the citizen’s right to procedural protection. If anything, public interest is best served by giving private interests full disclosure and fair opportunity to be heard. The act cannot be labeled ‘legislative’ for the purpose of dispensing with fairness and procedure.
• It is unnecessary to classify a process as judicial or quasi-judicial to establish a right to procedural fairness (based on Martineau and Re Nicholson). Once it is clear that rights are being affected, it is necessary to determine the appropriate procedural standard that must be met by the statutory body. This analysis requires flexibility (ie nature of the funcation and facts of each case).
Homex entitled to some procedural safeguards – at a miniumum to be given notice of the proposed by-law and the opportunity to be heard.
Comments:
• Take from this case that By-law is legislative in nature (subset of law). Nevertheless, in this case, the court found that procedural fairness was owed.
• The crucial point in the Homex decision is that the municipality had made a policy decision that had an immediate and specific target. This suggests that where a by-law or subordinate legislation of a more general character is being enacted, claims to procedural entitlements even by those affected immediately may be either diminished or eliminated.
• Unlike Inuit, here we have something that looks like acts of retainder (where law is done to affect someone in particular).
POLICY MAKING/PUBLIC INTEREST GROUPS
Where does the exclusion of decisions of a “general” as well as a “legislative” nature have its bite? Serves to deny claims to procedural protections in relation to certain species of broad based policy decision. When the impact of the decision is diffuse, affecting a broad spectrum of the public in a generally undifferentiated manner, claims to participatory rights are hard to justify,
Sea Shepherd Conservation Authority v The Queen (1984)
Court rejected a public interest group claim to a hearing for a decision to undertake a wolf kill program.
Court rejected a public interest group claim to a hearing for the grant of permits to cut timber. - Interesting – public interest groups don’t have a right but the wolf hunters and timber merchants/lumberjacks do.
Vanderkloet v Leeds & Grenville (1985)
School board reorganized three elementary schools (older kids to 2 schools and younger to the other). Minster of Education had issued guidelines re closing of schools that required public consultation. Board had prepared policies and a policy statement that required board to make alternative options known to community before making decision. Group of ratepayers challenged decision to reorganise. Court of appeal said that reallocation was not a school closing. Re procedural fairness claim Court held that the board acting in good faith within its statutory authority has complete power over reallocation of students within district and is not affecting legal rights of any person. Court not satisfied that principles of procedural fairness apply to board of education, an elected public body, who in good faithand within jurisdiction assigned to it by legislature resolves to reallocate student body within its district.
Bezair v. Windor Roman Catholic Separate School Board (1992), 9 OR (3d) 737 (Div. Ct.) • School board closed 9 schools in face of financial crisis.
• Contrary to ministerial guidelines and boards’ own policy on closings, parents and students given no opp to input into decision before it was made (some consultation after).
• Court did hold that the ministerial guidelines were not technically subordinate legislation and thus not strictly binding on the board but then Court said there was a level of fairness that applied.
• Since neither Minister’s nor board’s own procedural guideline followed there was a denial of procedural fairness
• Public consultation is condition precedent to a valid decision. •
Elliott v Burin Peninnsula School District (1988)
Court of Appeal decided closing of school was an administrative function that attracted rules of procedural fairness. No ministerial policy or internal school district policy setting out procedures! REGULATED INDUSTRIES AND PRODUCERS
Canadian Association of Regulated Importers v. Canada (AG) [1994]
• ministerial decision changing quota distrivution system for importation of hatching eggs and chicks. Impacted significantly on the historic importers.
• Lower court said Minister in deciding how to allocate import quota was exercising a staturoty power which had been delegated to him. Although decision was general, it was general only for a small segment of population and, in application, very particular. Cause a lot of
economic harm to the applicants. Implied principle that legislature intended powers to be exercised in acc with admin law rules of fairness. Present jurisprudence says that it isn’t necessary to find a “right” that exists but sufficient if applicant demonstrates an “interest” which justifies him bringing a judicial review. Not convinces that classifying a decision as being of a “policy” nature necessarily immunizes it from judicial review. For same reason, classifying decision as “legislative” is not useful either. Saud historic importers not guiven sufficient procedural protections and ordered that they continue to get their old entitlements until matter was re-evaluated in light of their submissions.
• CA reversed decision and said it was policy making and was akin to legislation—no right to make submissions
• Held principles of procedural fairness are not applicable to quota policy although they may be to individual decisions respecting grants of quotas. “traditionally a decision has been
classified as being of a legislative nature if it sets out general rules which apply to a large number of persons. This is counterpoised to a decision respecting one specific individual”.
o Suggests that the broader the affected group, the more likely to be a legitimate
policy decision. (from dissent in Homex)
• Statute did not indicate that procedural fairness was intended o No indication in statute that public consultation is required.
o What applicant is seeking is a public consultation process – not contemplated by statute
5. Procedural Obligation Triggers (Charter & Bill of Rights)
Now we turn to the triggers for another source of procedural obligations: Charter s.7 and Bill of Rights. A first observation on the Charter. This is administrative law, not constitutional or criminal law. It will almost always be wrong in an administrative law exam to discuss Charter rights other than section 7 – you are not being examined on s.11 rights or s.2 or s.15. (Section 11(d) for instance almost never applies to administrative bodies, unless the criteria for its application are met by, for example, the existence of contempt powers).
But with section 7, the situation is different because this provision does impose the requirement to observe “fundamental justice” – a concept with procedural content – on at least some administrative decision-makers. Which ones? Well, those making decisions that go to life, liberty or security of the person. Do not make the mistake of assuming that all (or even much) administrative decision-making relates to these interests. But some of it does and you need to understand how and where this trigger works.
The Canadian Bill of Rights is similar in many respects, but not all by any measure. Note carefully to whom it applies. Think about whether you ever want to say that a decision-maker exercising power under a provincial statute is subject to the Bill. Also look at the triggers for sections 1(a) and 2(e) and note the extent to which they are the same and differ from Charter s.7. Above all, recognize that these two provisions have their own triggers that have to be satisfied before they apply at all.
Canadian bill of rights applies to the “laws of Canada” – includes Acts of Parliament and any order, rule or regulation thereunder and any law n force in Canada – Section 5(2). Probably includes
decisions and actions taken by those deriving their powers from federal law. Probably doesn’t extend to activities of bodies whose functioning is made possible under facilitative legislation such as the Canada Business Corporations Act.
The Canadian Charter of Rights and Freedoms applies throughout Canada. But not coterminus with judicial review. Sec 32(1) means its application is restricted to Parliament and Government of Canada and the legislatures and government of provinces. Supreme Court holds this to be controlling provision and effect is to restrict Charter’s application in admin law arena to bodies or activities that can be brought within the concept of “government”
McKinney v University of Guelph [1990]
Notwithstanding statutory status, universities were not government and not generally amenable to the Charter, even with respect to actions and decisions that would expose them to judicial review.
Same holds true for BC Hospital Boards (Stoffman v Vancouver General Hospital) but not BC community colleges (FDouglass/Kwantlen Facility v Douglas College) so the dividing line between what is “government” is not clear.
Section 7 of Charter:
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.
Section 1(a) of Bill of Rights:
It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
• (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
Section 2(e) of Bill of Rights:
2. Every law of Canada shall, unless it is expressly declared by an Act of the 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
• (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
Supreme Court has held that “life, liberty and security of the person” under Charter only applies to natural persons and not corporations Irwin Toy v Quebec. Not clear if that applies to Bill of Rights persons/individuals.
S7 of Charter deliberately does not include protection for “property rights” but they are within Bill of Rights.
Authorson v. Canada [2003]
Question of procedural protections in ss 1(a) and 2(e) of Bill of Rights would only apply to legislative proceeding or whether they were subject to a threshold similar to that established for common law procedural fairness in Inuit Tapirisat
Facts:
• Authorson represents class of disabled vets who received pensions and other benefits from the Crown.
• Dept of Veterans Affairs administered the funds but did not invest them or put them in interest accounts
• Parliament passed the DVA Act s.5.1(4) which explicitly limited the Crown’s liability for past interests and stripped veterans of entitlement to claim damages for Crown’s failure to divest interests.
Claims:
• s.5.1(4) bar was inoperative under the Canadian Bill of Rights Major J for the SCC:
* What “due process” is guaranteed by s1(a) of Bill of Rights when property rights are extinguished?
Veterans argued there were 3:
• Procedural rights before parliamentry enactment of law
• Procedural rights before application of a statute to his individual circs • Substantive protections against govt expropriation of his property Procedural rights before parliamentry enactment of law
Only procedure due any citizen of Canada is that the proposed legislation receive 3 readings in Senate and House of Commons and that it receive Royal assent.
Court cannot compel parliament to change its legislative procedures based on the Bill of Rights. Procedural rights before application of a statute to his individual circs
Bill of rights guarantes notice and some opportunity to contest a govt deprivation of property rights only in the context of an adjudication of that persons rights and obligations before a court or tribunal. Where the law requires application of a discretion or judgement to specific factual situations, notice and an opportunity to contest may be required. However, notice and an opportunity to contest are not required where the govt legislates to completely eliminate such benefits. This situation is a non-discretionary application of law to incontestable facts.
Substantive protections against govt expropriation of his property
Bill of Rights does not protect against expropriation of property by passage of unambiguous legislation.
* s2(e) of the Bill of Rights
S2(e) only applies to guarantee the fundamental justice of proceedings before any tribunal or
administrative body that determines individual rights and obligations. This is more obvious when you examine the other guarantees of s 2. (e.g. protections against arbitrary detention, right against self incrimination, presumption of innocence, right to an impartial tribunal) – all of which are legal rights applicable in the context of, or prior to, a hearing before a court or tribunal.
S2(e) does not impose a duty on parliament to provide a hearing before enactment of legislation. Singh v. Minister of Citizenship and Immigration, [1985]
Impact of s7 of Charter on administrative processes Facts:
• S was one of several convention refugee claimants. Following the procedure then in place, the minister had determined that they were not convention refugees.
• They appealed the decision, but the Immigration Appeal Board didnt refer their cases to an oral hearing
• Appealed again to FCA alleging the statutory scheme infringed on s.7 of the Charter. They failed. • At SCC made oral arguments on Charter case, and then asked to make written submissions on
Issue:
• Was the statutory scheme consistent with s.7 of the Charter? NO. S entitled to s.7 fundamental justice.
• Was the statutory scheme consistent with s.2(e) of the Canadian Bill of Rights? Wilson J (Charter):
The Scheme of the Immigration Act, 1976
• The Act does provide Convention refugees with certain limited rights to enter and remain in Canada.
• The problem passes on to the procedures for determining if someone is a Convention refugee. • s.45(4) of the Act does not envisage an opportunity for the refugee claimant to be heard other than
through his claim and the transcript of his examination under oath. The Committee that reviews and is the decision-maker is therefore isolated from the persons whose status it is adjudicating and it makes use of information and applies policies to which the claimant has no access.
• Substance of appellants’ argument is that they did not have a fair opportunity to present their refugee status claims or to know the case they had to meet. But these are the procedures and they were followed correctly.
• For appellants to succeed it must be on the basis that the Charter requires the Court to override Parl’s decision to exclude the kind of procedural fairness that they seek.
Application of the Charter
• s.7 applies to “everyone” – that is, every human being who is physically present in Canada. • Appellants have 3 rights under the Immigration Act, 1976
1) Right to a determination from the Minister on whether he can enter and remain in Canada 2) Right not to be returned to a country where his life or freedom would be threatened 3) Right to appeal a removal order or a deportation order made against him
• Question then becomes whether the deprivation of one of these rights constitutes a violation of the s.7 right to “life, liberty and security of the person”.
• Note that even if s.7 is a ‘single right’, a violation of any of the 3 components (life, liberty, security of the person) is a violation of s.7.
• Wilson concludes that a denial of the rights possessed by a Convention refugee under the Act to not be removed from Canada to a country where his life or freedom would be threatened constitutes a deprivation of his security of the person.
• But the appellants cannot access the rights of Convention refugees. Their claim is that they are entitled to fundamental justice in the determination of whether they are Convention refugees or not. • Given the potential consequences for the appellants of a denial of that status if they are in fact
persons with a well-founded fear of prosecution, they are entitled to fundamental justice in the adjudication of their status.
• Do the procedures for the determination of refugee status under the Act accord with fundamental justice? i..e do they provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet.
• While procedural fairness may demand different things in different contexts, i.e. Judge is prepared to accept that written submissions may be adequate substitute for an oral hearing in appropriate circumstances.. However, where a serious issue of credibility in involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.
• The procedural scheme does not provide adequate opportunity for refugee claimant to state his case and know the case he has to meet (“Applicant is entitled to submit whatever relevant material he wishes to the Board but still faces hurdle of having to establish to the Board that on the balance of probabilities the Minister is wrong. Moreover, he must do this without any knowledge of the Ministers case beyond the rudimentary reasons which the Minister has decided to give him in rejecting his claim.”) This aspect of the procedures set out in the Act is impossible to reconcile with the requirements of “fundamental justice” as set out in s.7.
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.”). “The issue in the present case is not simply whether the procedures set out in the Immigration Act for the adjudication of refugee claims are reasonable, it is whether it is reasonable to deprive the appellants of the right to life liberty or security of the person by adopting a system for the adjuidication of refugee status that does not accord with the principles of fundamental justice.” Utilitarian considerations cannot constitute a justification for a limitation on the rights set out in the Charter. I.e. balance of administrative convenience doesn’t override the need to adhere to principles of fundamental justice.
Beetz (concurring) (Bill of Rights):
• Agrees with Wilson majority that appeals should be allowed. But on the basis of the Bill of Rights. • Appellants’ refugee claim involves the determination of rights and obligations for which they have,
under s.2(e), the right to a fair hearing in accordance with the principles of fundamental justice • They were not afforded such a fair hearing. They were denied their claims without their having
been afforded a full oral hearing at a single stage of the proceedings.
This does not mean that the principles of fundamental justice will always require an oral hearing. But determining this requires looking at the nature of the legal rights at issue and the severity of the consequences to the individuals concerned.
• The most important factors in determining the procedural content of fundamental justice in a fiven case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned.
Reasoning in Singh has been extended to arena of extradition proceedings, including extradition of fugitive criminals who enter Canada illegally (Kindler v Canada 1991).
Two qualifications to Singh have emerged: 1. s7 doesn’t always require an oral hearing
2. in addition to balancing of interests that must occur in making determinations as to the precise procedures that the “principles of fundamental justice” mandate, there is also room for s.1 to be invoked in justification of s.7 violations. Court held in Kindler that Minister hadn’t breached principles of fundamental justice in the procedures adopted in deciding whether to grant the
extradition request from foreign govts. Arena for judicial type procedures is at the actual extradition hearing and no need to replicate at the surrender stage.
Chiarelli v Canada [1992]
Authorities moved to deport Chiarelli, a permanent resident, on grounds he had committed serious criminal offense rendering him inadmissible under Immigration Act. Security Intelligence Review Committee recd a report from Solicitor General and Minister for Immigration saying he would be involved in organized crime if he stayed. SIRC was required under the Act to investigate report and if SIRC upheld it, the governer in council had power to direct Minister for Immigration to issue a certificate precluding Chiarelli from appealing deportation order.
Chiarelli challenged constitutionality of his deportation order. Said the rules of procedure adopted by SIRC allowed them to exclude him when govt witnesses giving evidence and limit his ability to cross examine.
Sopinka held that if there was a deprivation of his liberty or security of the person, it was in acc with principles of fundamental justice. In assessing whether a procedure complied with principles of fundamental justice, necessary to balance competing interests of state and individual.
Chiarelli had been given docs summarizing information that SIRC received from ministers and thage gave him sufficient info to know the substance of the allegations against him and to allow him to be able to respond.
Charkaoui v. Canad a (Minister of Citizenship and Immigration) , 2007
In 2003, Adil Charkaoui, a permanent resident in Canada, was arrested and imprisoned under a security certificate issued by the Solicitor General of Canada (then Wayne Easter) and the Minister of Immigration (then Denis Coderre)
Hassan Almrei and Mohamed Harkat are foreign national who were granted refugee status in Canada. Both arrested on a security certificate.
All three detained pending completion of proceedings for their removal.
Immigration and Refugee Protection Act (IRPA) said first step on proceedings was for a federal judge to review the certificates to determine if reasonable. Review was conducted in camera (private) and ex parte (emergency hearing) as request of minister. Individuals had no right to see the materials on the basis of which the certificate was issued. Non-sensitive material could be disclosed but sensitive material could not if minister objected. Reviewing judge’s decision that a security cert was
reasonable was final and could not be appealed.
Constitutionality of certificate was challenged including on basis that the procedure to determine the reasonableness of certificates violated s7 rights.
McLaughlin CJ:
S7 requires not a particular type of process but a fair process having regard to the nature of the proceedings and the interests at stake. Procedures required to meet the demands of fundamental justice depend on the context. Societal interests may be taken into account.
S7 not concerned with wither the limit on life, liberty or security of the person is justified but whether that limit has been imposed in a way that respects the principles of fundamental justice.
So threat to national security vs the serious individual interests at stake.
Principle of fundamental justice that applies here is that before the state can detain people for significant periods of time, it must afford them fair judicial process. A number of facets: 1. right to a hearing,
2. before an independent and impartial magistrate 3. decision by the magistrate on the facts and the law 4. right to know the case put against you
5. right to answer that case.
IRPA meets the requirement of independence and impartiality but did not provide for the judge to make a judicial decision based on facts and law and did not afford individuals an opp to meet case put against them and question or counter it.
Case to meet:
Certificate scheme places great emphasis on confidentiality. So Judge may have to consider info that is not included in the summary of information provided to the individual. So the individual may know nothing of the case to meet, although technically afforded an opp to be heard, may be left in the position of having no idea of what needs to be said.
