Summary.Adminfinalexam.2014 Notes

CHAPTER 1: WHAT IS ADMIN LAW?

• Legal system’s way of confining the law in a rational and comprehensible way through regulation of government power and implementation of public programs (esp. at point of delivery)

• AL tries to create civility between public officials and the subjects of legislation

• Response to the continuing desire and fear among the citizenry

• Holds the executive (para-public entities) accountable – tries to make it more transparent by extending the rule of law and democracy into a bureaucracy

• Deals with agencies, boards and commissions (ABCs)

  • ABCs are advantageous because of expedience, costs, specialization, easy creation, high caseload, freedom from political pressures

  • With ABCs, the task is to get at the job under the mandate and be efficient

  • Legislatures creates these ABCs which must abide by rule of law

• Institutions of the administrative states: legislature, crown corporations, cabinet, municipalities, private bodies, ABCs

COURTS	AGENCIES
Truth seeking, fairness, time consuming Generalist bodies applying law Resolve via adversarial system Procedures are generally the same from ct to ct Caseload finite/limited	Completing mandate Fact-finding but also forward looking Use specialized personnel Statutory powers and distribute benefits Infinite caseload Variable procedures – often responsive to constituency

Q: How does the bureaucracy (ABCs) relate to courts?

1. Justify actions by link to constitution in which law applies equally and everywhere

2. Ensure that the rule of law (ROL) is obeyed

3. Conditions of judicial approval of ABC decisions include:

   1. accountability (perceived as rational, fair)

   2. rationality – reasons given and decision justifiable

   3. justifiable: transparency, reasons, fair procedure, participation

4. There is a degree of autonomy with the ABCs in the interest of fast, cheap responses

   1. The degree of autonomy informs the fear-desire calculus which deals with the ABCs having so much power and the courts ensuring that the system remains accountable)

   2. Dunsmuir has tried to reconcile this tension by noting that Cts have the final say on jurisdictional limits (para 30), judicial review of statutory powers is guaranteed and cannot be legislated away (31)

Q: How are ABCs accountable to Cts?

• Original Jurisdiction: Cts have jurisdiction over ABC decisions as makers of private law

  • Where there is no mechanism of appeal, you can still take the claim to court. Ex. 1995 in-coming Lib government cancelled Tory plan to renovate Pearson airport’; decision challenged as breach of K.

  • Cts can intervene where there is no right of appeal if there are issues with procedural fairness, illegality, unreasonableness, constitutionality

  • FC has exclusive jurisdiction over federal admin agencies; SC has supervisory jurisdiction

• Appellate Jurisdiction: exists only by statute. There is no original jurisdiction for appeal (it requires leave of the Ct). The appeal is a question of law and no facts can be in dispute (narrow appeal)

• Judicial Review Jurisdiction: Cts have jurisdiction to review ABC decisions. This is constitutionally entrenched under s. 96 of CA (Crevier v QC 1981 SCC). This is intimately connected with the ROL because all exercises of public authority must have a basis in law, public officials have legal limits, and Cts role is to supervise and ensure those limits are not exceeded. Ct does not substitute its own decision for that of the delegate.

  • JR to Federal Court (see Federal Courts Act)

  • JR Provincial: Ontario Judicial Review Procedure Act

  • Professor Dicey in the UK noted that all citizens must be held accountable for a distinct breach in the law; introduced the ROL principle to AL. Dicey argues there is no separate public law applying outside ordinary courts.

Q: Can ABCs act ultra vires?

Case law: See Cooper

=> Yes

• ABCs must act within their statutory confinements. Cts interpret the legislation to determine whether the decision makers are unbiased, to keep power confined within the proper purposes, and ensure power is used fairly and transparently

ORDERS ISSUED BY THE COURTS RE: ABCs

Prerogative writ: judicial review jurisdiction applied through this. Royal power to require public official to come before Ct of QB to justify decisions (codified in ON).

Certiori: writ to quash ABC decision

Prohibition: order tribunal not to proceed in a matter

• Note that certiori and prohibition are contingent on presence of judicial or quasi judicial function (Ridge v Baldwin 1964 Eng HL)

Mandamus: order performance of a public duty

Quo Warranto: authority must justify entitlement to hold public statutory office against claim that a person is a usurper

Q: What makes a power ‘quasi-judicial? (QJ)’? (RHR)

• Legal authority to affect rights

• Legal duty to hold hearings

• Adjudication by rules, not policy

Q: What are the implications of a QJ decision?

• Decision makers must observe natural justice before making a decision

• Formal notice of a possible action is required

• Trial type opportunity to challenge and comment

• Violation of technical requirements of a QJ power

CHAPTER 2: PROCEDURAL FAIRNESS

Cases: Martineau, Cardinal, Cooper, Nicholson, Baker, Mavi, Suresh

PART I – PROCEDURAL FAIRNESS PRINCIPLES

FRAMEWORK: 1) Assess the statute to see what the legislative intent is 2) Go to 5 Baker factors

Martineau v Matsqui Inmate Disciplinary Board – Duty to act fairly exists even if decision maker doesn’t have duty to act judicially.

Cardinal v Director Kent Institution 1985 SCC: duty of procedural fairness lies with every public authority making a decision affecting rights, privileges or interests of person.

Cooper v Bd of Works 1863 ENG (Functional approach to procedural fairness – PF not just public-law based)

F: s. 76 of Act requires 7 days notice be given to board of workers before house is built, otherwise it is demolished. C sends notice and builds 5 days after. Bd claims no notice given – house demolished. C argues demolition and act of seeking costs from owner is ultra vires (beyond bounds of statute). Notice and comment not authorized expressly by statute.

Ratio: Even if statute does not expressly indicate that notice and comment is required, procedural fairness may be expanded to apply to statute.

Reasons: CL supplies here for omission of the legislature. Leg never intended to confer power to deprive of property without notice.

NOTE: the Ct is filling in the gaps here because the statutory provisions are not express

Nicholson v Haldimand 1979 SCC (Implications of QJ decisions)

F: N constable hired by K and appointed under Police Act. Act says no constable shall be dispensed of before 18 months of service and no penalties shall apply without hearing. N fired at 15 months.

Ratio: Principles of natural justice run through quasi-judicial administrative settings. There is a general duty of fairness in administrative sectors.

Reasons: notice and comment should have been given here. N should have been given opportunity to respond orally or in writing. Although there is a hybrid K law/public law matter here, this is not a breach of K, but rather a breach of procedural fairness. This scheme creates an undesirable master-servant relationship.

NOTE: The distinction between Nicholson and Cooper is that in Nicholson, the statute does not provide for procedural fairness before a certain amount of time. After Nicholson, certiori remedy became very broad through Martineau; applied to anything

Baker v Canada 1999 SCC (helps resolve questions from Nicholson re: threshold for notice and comment; looks to LEG intent)

F: live in caregiver overstayed in CDA. Applied for PR under H&C grounds. Had 4 children in Jamaica and 4 in CDA. Diagnosed with severe paranoid schizophrenia and on welfare. App denied without reasons and removal order issued. Officer’s notes indicate she is a strain on the system and should be removed. S. 114 IRPA authorizes H&Cs as discretionary to Minister involving a written decision; no oral hearing. She sought a notice and oral interview.

I: Were principles of procedural fairness violated? Was there a RAB?

D: yes; appeal allowed

Ratio: Where rights, privileges or interests of the individual are engaged, duty of fairness is triggered. Duty of fairness includes the following factors:

1. Nature of the decision being made and the process followed in making it

   1. The more 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 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

2. Nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”

   1. Example, greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted

3. Importance of the decision to the individual(s) affected

   1. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated

4. Legitimate expectations of the person challenging the decision

   1. This doctrine is part of the doctrine of fairness or natural justice, and does not create substantive rights. It takes into account that it will be generally unfair for decision-makers to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights

5. Take into account and respect the choices of procedure made by the agency itself

   1. Particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances

Reasons: There must be a meaningful opportunity to present evidence in an H&C application. An oral hearing is not necessary here (she responded in writing). In some cases, the duty of fairness requires written explanations for decision. The test for a RAB is whether an informed person viewing the matter realistically and practically would conclude a RAB. Deference should be given where the statute confers broad discretion. The Convention on the Rights of the Child should inform the contextual approach to judicial review.

NOTE:

• This case is considered within its statutory institutional context – what does IRPA and the manual required to make decisions require the officer to do?

• The 5 Baker factors are like condition precedents to the implementation of the statutes

• Para 42 “Baker” on the nature of the decision: AL decisions require a fair and open procedure that is appropriate to the decision being made and provides for an opportunity for participation by those affected to present their evidence

Canada v Mavi (procedural fairness – looks to intention of LEG)

F: family sponsorship involving multiple family members. Upon arrival to CDA, they apply for social assistance and government seeks reimbursement from sponsors.

H: Baker factors are a roadmap, not a substitute for procedural fairness

Reasons: Nature of the decision is final and specific – could result in filing a ministerial certificate with the FC which is enforceable as a judgment. Absence of remedies for the person militates in favour of duty of fairness at time of enforcement of decision. Gov req’d to give notice to sponsor re: claim.

Suresh v Canada 2002 SCC

F: security certificate. Did not have copies of reasons for deportation after certificate was issued. Made no oral or written submissions.

Ratio: With deportation, s. 7 does not require full oral hearing or complete judicial process. Procedural fairness requires that the individual be able to meet the case, and materials should be provided to individuals. Decision of minister must be written if a prima facie case for torture made out by applicant.

Reasons: MCI doesn’t indicate why he would not be subjected to a risk of torture. Procedure here is highly discretionary and limited in appeal structure given legislative intent (Baker 2). The nature of the decision is serious, evaluated based on risk, and deals with balancing and weighing risks (Baker 1). The decision is important to Suresh in terms of risk of torture; there are economic, financial and emotional implications (Baker 3). The LE is that he can know the case and be able to meet it (Baker 4). Must be given basis of case against him which means materials must be provided (Baker 5).

NOTE:

• The CT used right to procedural safeguards in the CAT for requiring substantial grounds for believing person would be in danger of subjection to torture

PART II: HOLDERS OF PUBLIC OFFICE

Knight v Indianhead (HYBRID RELATIONSHIP: Duty of fairness applies in public law unless public service K specifies otherwise)

F: director of education of Indian Head school board. Position set out in Education Act. Had K w/Bd, was fired. Brought certiori to set aside firing. He argued he had a K relationship that was authorized by statute (hybrid like Nicholson), he sought notice and comment procedures before decision taken.

H: certiori granted

Reasons: notice and comment is required to some extent because even public office holders have a right to procedural fairness. Nonetheless, K was notified of the firing and made representations in this respect.

Dunsmuir v New Brunswick 2008 SCC (HYBRID RELATIONSHIP – LIKE NICHOLSON AND KNIGHT; reversal of Knight)

F: DOJ employee contracted, not unionized (hybrid K/statute position). Reprimanded 3 times with warning for dismissal or further action. Terminated by letter without reason under s. 20 of NB Civil Service Act. Given 4 months pay in lieu of notice. Grievance filed – adjudicator reinstated him.

Ratio: PF must look to the nature of the relationship. Dismissal disputes must be resolved according to express or implied terms of K of employment, statutes and regs. Dismissal under a K shouldn’t be subject to duty of fairness. Where one is protected by K, K law should provide remedy. Exceptions:

1. Where X not protected by K (judges or crown)

2. Duty of fairness flows by necessary implication from statute governing relationship

Reasons: Judicial review ensures legality, reasonableness and fairness of administrative process. It upholds ROL and leg supremacy. Dismissal with notice is not unfair per se.

NOTE:

• Dunsmuir demonstrates a narrow application of procedural fairness (this is mentioned in Mavi at para 51)

• After this case, we are left with the Q as to how far the exclusion of public law concepts with hybrid relationships go

CHAPTER 3: CABINET DECISIONS AND APPEALS, BY-LAWS, RULE MAKING, POLICY MAKING

PART I: CABINET

Cases: Inuit Tapirisat, FAI Insurance

Canada v Inuit Tapirisat of Canada 1980 SCC (Cabinet decision – Baker 2)

F: Inuit oppose hydro rate increase suggested by Bell and approved by CRTC. CRTC had power to regulate rates of utilities under s. 64 of the National Transportation Act. Inuit and Bell makes written submissions to GIC, CRTC submits to department, dep’t makes recs to Min, and Min is present at cabinet meeting. Inuit appeals based on statutory authority claiming rec from dept not given to them and therefore lack of PF.

I: Is there a duty to observe natural justice on part of Cabinet?

D: no; appeal dismissed

Ratio: We must look to the statutory scheme as a whole to see if the legislator intended for procedural fairness. Courts must look to see whether GIC performed duties within boundaries of statute.

Reasons: Mere fact that statutory power is vested with GIC doesn’t mean it’s beyond review. Wording by parl shows that cabinet can fix rates at any time. No need for reasons for decision, or a hearing.

NOTES

• Cabinet may be subject to certain implied procedural obligations (Desjardins v Bouchard 1983 FCA)

• Terms of statute in this case are key: GIC has the discretion to vary rates. Because cabinet is delegated authority by statute, PF doesn’t apply

• Ct doesn’t want to fetter with process such that it becomes a judicial appeal

FAI Insurances v Winneke 1982 Aust Ct (procedural fairness to corporations)

F: insurance providing workers compensation; statute requires approval of the GIC to ensure that the insurer is ‘fit and proper’ person for compensation. Gov eventually has problems with FAI and provides them with warning that some of approval criteria are not being met and limits approval from 1 yr to 6 mo. Min rejects FAI’s approval, FAI asks for notice and opportunity to be heard which is rejected by Min.

H: It is proper that GIC acts in conformity with principles of natural justice by giving to the applicant an adequate opportunity to present its case.

PART II: BY-LAWS, RULE-MAKING, POLICY-MAKING

Cases: Homex, Bezaire, Regulated Importers, Pikangikum

***Legislative powers also affect rights, privileges, and interests.

Homex Realty and Dvp’t v Wyoming 1980 SCC (Treated as quasi-judicial decision)

F: Municipality passes by law under Planning Act designing H’s subdivision plan as one that is unregistered without notifying H. H sought certiori @ SCJ to invalidate based on lack of procedural fairness.

Ratio: Where statutory bodies seek to limit property rights, Cts will imply a right to be heard unless there is an express declaration to the contrary (includes bylaws).

Reasons: The by laws are based on a legislative power. The right to procedural fairness no longer requires a priori classification of quasi-judicial decision. By law was of specific application here and limited rights of individual, which requires opportunity to be heard. This is an inter partes dispute which the legislation is meant to deal with.

PF SPECTRUM EMERGENCE FROM HOMEX

Legislative ---------------------------------------------------------------- quasi judicial

Ministerial rule application

Policy specific

general = high PF

= no P

*Where a law, by-law, or policy is more general in character, procedural fairness claims may be diminished or eliminated.

Bezaire v Windsor Roman Catholic Separate Bd 1992 (Ont Div Ct) (Rule Making)

F: Bd closes 9 schools due to financial crisis. Parents and students had no input into decision. Under statute, Min required to issue procedural policy for closure of schools and board had policy too – neither were followed.

I: Did the school Bd abrogate from PF obligations?

D: yes

Ratio: Where a statute directs for public consultations, those requirements must be abided by to comply with PF requirements.

Reasons: notice and comment required here because there are statutory and non-statutory internal guidelines mandating it. School Bd relied on Vanderkloet Case 1985 ONCA incorrectly – that case was about consolidating schools, not closing them. In Vanderkloet, the CT ruled that PF doesn’t apply to Bd of education with an elected body. It is inapplicable here because this case deals with closure of schools and a statute mandating public consultation. The interest here is the cultural factors associated with the community (Baker 3).

Canadian Association of Regulated Importers v Canada 1993 FC (POLICY)

F: Min decision changed quota distribution for importation of eggs and chicks that affected historic importers who claimed that they weren’t consulted.

I: Did Min breach procedural fairness by not consulting with importer’s association?

D: yes

FC decision: policy reasons aren’t immunized from judicial review. Must look to effects of decision when assessing whether PF is required.

FCA decision overturns FC: PNJ don’t apply to quota policy because decision is legislative or policy based, courts should not interfere. There is no requirement for a public consultation process and it shouldn’t be imposed on the Minister. Decision was made for a small known segment of the population.

NOTES:

• The asset here is the right to import

• The question here is what is the legislative focus? The impact is important here, and although it’s general, you can still see who will be affected

• The case treads a fine line between legislative and policy decision-making

Pikangikum First Nation v Canada 2002 FTR (POLICY)

F: PFN receives 12-14$ million/yr from INAC. There was concern after there was an oil spill in the region. 2000, INAC writes to PFN indicating intention to appoint third party manager. INAC tried to co-manage but failed and hired a third party. The directive required them to provide written reasons for co-management or third party management, which was not provided.

I: Can the Minister require co-management of all public funding and services for PFN?

D: no; breach of PF

Ratio: Where notice and comment is required by policy/regional directive before a decision is taken, it must be executed in accordance with the policy and there must be meaningful discussion between the party implementing and the party subject to the inquiry.

Reasons: the notice here did not give the party an option – it simply stated that there was an intention to appoint a third party manager. The decision takes away the applicant’s right to manage its own affairs (Baker 3). The reasons given in the letter were too general and didn’t address the specifics of INAC’s concerns.

CHAPTER 4: RIGHTS, PRIVILEGES, INTERESTS, PROCUREMENT, RECOMMENDING FUNCTIONS (BAKER 3)

Cases: Webb, Hutfield, Lazarov, Shell, Abel, Irvine

PART I: RIGHTS PRIVILEGES, INTERESTS (Baker 3)

Re: Webb and Ontario Housing Corporation 1978 ONCA (Sliding Scale of PF; Hybrid public private like Dunsmuir, and Knight; PRE-KNIGHT)

F: W obtains housing from OHC and receives 3 written notices warning of lease termination due to behavioural problems with her children. No evidence that she doesn’t understand the notices. OHC terminates lease. Hybrid form of benefit conferred to W via statutory and CL powers in terms of her possessory right in the unit. She brings an app for judicial review in a private matter.

I: Is procedural fairness required?

D: yes

Ratio: Must look to the relationship between the authority and the individual affected before deciding procedural fairness.

Reasons: She was entitled to procedural fairness, but she was afforded PF by her landlord who provided notice. We need to be cautious about judicializing. Decision to afford housing doesn’t have to do with fairness, but rather income qualification.

NOTES:

• Her benefit here is instantly risked when her landlord wants to terminate the application

• She brings an app for judicial review to buy time here because she wants to stay in the unit; she is delaying a battle that could win (she is frustrating the pte law actor)

• Case tells us that some form of PF is required for those on social assistance

• Case tells us RANKING of PERSON’S INTERESTS are key

Hutfield v Bd of Fort SK Gen Hospital 1986 ABQB (Privileges/Interests)

F: Hospital Act gave board responsibility for its affairs and to make bylaws. S. 11 of bylaws require applications and appointments to be sent to college of physicians and surgeons. H sends app for hospital privilege (already a doctor). College approves, and subsequent appointments committee and chief reject it after assessing training, suitability, experience and references. Rejected 3 times – rejected an opportunity to appear before board.

I: Did the board breach procedural fairness?

D: Yes

Ratio: Where decision modifies or extinguishes rights or interests of a person being considered, PF standards should be adhered to. Failure to abide by such standards could require certiori or mandamus.

Reasons: There are limited cases where certiori is granted when dealing with an initial license or permission. Although there was no LE that he would be granted hospital privileges, his patients were affected and thus his interests were affected. A duty to act fairly can be drawn when 1) a decision is based on mixed fact/opinion 2) there is an investigation dealing with reasons for why X isn’t granted 3) there is a public interest.

NOTES:

• In Webb, the right/interest already exists, but here, the right is being sought

• His position is weak here because he is going up against the body that is responsible for granting a privilege

• The slur cast upon him is magnified because the decision takes place in a small town setting (consider reputation which could warrant some procedural rights)

Lazarov v Secretary of State 1973 FCA

F: citizenship denied in light of confidential information, which wasn’t disclosed, to L.

Ratio: Even where a confidential report cannot be disclosed, an applicant must be given the opportunity to dispute or explain application if refused a right or interest.

PART II: PROCUREMENT (Baker 1 + 3)

• Government goods include commodities exchanged by K with govts

• There is a Q as to whether these Ks are subject to public law or pte, K law

• Volker 1994 NWT CA: Simple procurement decision by a government is an exercise of contractual power. Volker here was removed as being eligible to bid on a contract bidding process – decision was subject to procedural fairness inquiry.

• Shell Canada v Vancouver 1994 SCC

  • F: resolutions of the city indicate that it wont do business with Shell due to apartheid in south Africa where it was holding business

  • H: Judicial review and procedural fairness still apply to government procurement practices

  • Concern here is with public exercise of power – there is a concern for fairness and integrity, a lack of corruption and quality of access

  • This is a hybrid relationship because of the purchase of trades and goods

  • K is steered by the resolution

  • Mavi applies here because the question is how much the statute touches K law. It applies extensively.

• Minister’s power to enter acquisition of real property by leave may no longer be described as an inherent power once GIC with authority of legislature makes the acquisition

PART III: INVESTIGATING/RECOMMENDING DECISIONS (Baker 1 + 3)

• These processes involve multi-stages. They might involve one party that investigates and another who may make a decision based on the information retrieved

• Even with decisions that are non-dispositive, there is an opportunity for procedural fairness

  • Ex. Re Pergamon Press 1971 CA: A fair opportunity to correct and contradict what is postulated against oneself is key.

  • BUT see: Guay v Lafleur 1965: non-dispositive decisions do not require natural justice

• If a mere allegation can destroy a reputation, there may be an argument to be made in favour of PF

Re: Abel and Advisory Review Bd 1979 Ont Div (aff’d ONCA)

F: Advisory Bd created through Mental Health Act. Function of Bd is to review psych institution patients under warrant of LG after found NCRMD. Act allows in camera hearings. Patient may attend hearing unless otherwise directed. Patients’ lawyers requested disclosure of documents; refusal; chairman said he had no authority to authorize. Statute restricts sharing of documents.

I: Did the Bd breach procedural fairness by refusing to provide disclosure of patient to counsel?

D: Yes

Ratio: Distinction between entity acting in a judicial or quasi-judicial capacity is not an adequate manner of determining whether PF is req’d.

Reasons: disclosure was possible here because the Bd received the files under the act and didn’t have to ask the medical centers to breach confidentiality by reproducing them. The documents should be disclosed because 1) effect on recommendation is vital to applicant’s freedom and 2) records vital to allow party to have an adequate opportunity to know and meet the case (Baker 3)

NOTE:

• This case demonstrates that procedural rulings not necessarily viewed on a correctness standard – there is some predisposition for the courts to give the Board deference because the matter was sent back to the board for redetermination

Irvine v Canada 1987 SCC (Baker 5)

F: Combines Investigation Act permitted 2-step inquiry into unlawful trade practices. First meeting in camera held by hearing officer – 29 witnesses present, but procedural protections were limited (i.e. right to cross exam, right to counsel, etc.). Report is sent from this stage to a cttee.

I: Is the 2-step process lacking procedural fairness?

D: No

Ratio: An investigatory body has the power to control its own procedures. We must look to these procedures to assess whether they are operating fairly. Determinative powers lend a heightened awareness for PF. Characteristics of a proceeding, the nature of the report, penalties, public scrutiny, consequences, and the nature of the inquiry all contribute to analysis of the proceeding.

Reasons: Director has the power to provide evidence to the Board or Minister and no right to make decision. Commissioner’s role in second stage deals with making the reports to the Minister. These hearings are private because of the nature of the crime and the difficulty of adducing evidence. The 2 stages only involve fact-fathering rather than procedural rights.

NOTES:

• This case tells us that there are no rights at the investigatory stage

• Courts shy away from intervention where the process assessed deals with gathering raw material for consideration

• Where the decisions more dispositive and conducted in a ‘final’ sense, courts are more inclined to intervene

• Although a multi-stage process requires PF, statute may speak otherwise.

CHAPTER 4: LEGITIMATE EXPECTATIONS, ISSUE ESTOPPEL (BAKER 4)

PART I: LEGITIMATE EXPECTATIONS

• This doctrine emerged as an alternative to a situation where procedural rights were not available

• Through Baker, however, the opportunity to have high LE is augmented given the expansion in the scope of procedural rights

• The doctrine of LE comes from Old St Boniface Residents Assn:

  • “affords party affected by the decision of a public official an opportunity to make representations in circumstances where a party has been led to believe his/her rights would not be affected without consultation”

• LEs afford PROCEDURAL, not substantive rights

  • Ex. LE cannot afford a monetary right

• Can create a right to make representations to be consulted [Reference Re: Canada Assistance Plan]

• Sources of LE:

  • Statutory guidelines

  • Non-statutory guidelines

  • Past/regular practices

  • Representations

  • Express promises (Baker)

  • Conduct of a government official

  • Implications of policy or statute

  • Nature of interest affected (Baker 3)

• LE is part of the fairness doctrine and affects the content of the duty by: 1) requiring one to follow expected procedure 2) requiring more extensive procedural rights [Baker para 21]

  • In Baker, LE was based off the Convention on the Rights of the Child

  • She argued that her LE required an oral interview before her deportation based on the Convention

  • This case tells us that a LE can be implied by a promise or regulatory practice

  • NOTE: there is no substantive right in her LE because it doesn’t quash deportation order (therefore the procedural right is indirect to the goal)

  • This case is distinct from Hutfield because there is a greater weight with Baker in the balance of power

• Case law is split on whether there is due diligence on part of person claiming LE – case law is split here

• Suresh v Canada SCC

  • International convention (CAT) gives rise to LE that no person shall be deported if there are substantial grounds to believe that there is a risk of torture

  • Government ratified CAT and intended to respect it – this is what moved the court to an analysis dealing with PF

• Furey v Roman Catholic School Bd 1991 NS SCTD: school closing sparking claim that residents were not consulted. Court saw the following factors which gave rise to a LE: consultative process, public communication and non-statutory guidelines

• Council of Civil Serv Unions v Min for Civil Service 1985 Eng HL: Gov comms headquarters ensures security of military communications and deals with intelligence. There was a long-standing practice involving consultation between the government and the unions re: employment. Negotiations failed and Council of unions brought action based on lack of consultation after Min declared unionization prohibited.

  • H: claim fails; national security component supersedes LE

  • Ratio: A LE arises from an express promise on behalf of public authority or a regular practice that claimant reasonably expects to continue can be overruled by a national security concern.

Reference Re: Canada Assistance Plan 1991 SCC (limits of LE)

F: CAP authorized feds to enter agreements with provinces for sharing costs of social assistance programs. S. 8 allows agreements to continue as long as provincial law remained in operation. Feds amend bill due to fiscal constraint, effectively limiting the increase to financial contributions to 3 provinces, without their consent.

I: Is the fed gov precluded from amending CAP on grounds that there was a LE re: amendments only being made by consent?

D: no; appeal allowed

Ratio: LEs do not result in substantive rights, and are purely procedural safeguards. Restraints on Parl with LEs would fetter with its sovereignty, especially with a money bill.

Reasons: Formulation of money bills are part of the legislative process that the courts should not meddle with given s. 54 of the CA 1867. If LE applied, then feds would be paralyzed and couldn’t introduce legislation. Gov’t business would be stalled. Govt’s shouldn’t be bound by terms of its predecessor.

NOTE:

• LE doctrine only generates a hearing entitlement

• There is no CL entitlement to procedural fairness with a legislative function, but the LE doctrine seems to open this possibility up

• Definition of leg functions is unclear in CAP Reference, which makes us uncertain as to whether the LE doctrine actually applies

• LEs could apply where CL procedural entitlements do not apply in context of rulemaking and broadly based policy decisions

PART II: PUBLIC LAW ESTOPPEL

• requires an appreciation of the legislative intent in the power sought to be estopped. Circumstances that create an estoppel may have to yield to an overriding public interest in the legislative context

• requires evidence of unequivocal reliance, extreme harm invoked, and knowledge (US adopted factors)

• must be sensitive to the factual and legal contexts of the case

• the institutional practices made by a Minister are significant but not determinative

• where a government makes a clear, unambiguous and unqualified representation, it may be held to its word provided that doing so doesn’t conflict with statutory duty [Canada v Mavi 2001 SCC]

  • note here that there was no representation indicated that the government will relieve debt when Min defers the debt. Undertaking doesn’t preclude sponsor signatories from being granted deferral by gov discretion.

Apotex v Canada (AG) 2000 FC (Redefines LE)

F: CDN Drug Manufacturers (CDMA) lobbying for A. A is challenging the motion judge’s decision that the NOC (Notice of Compliance) for a patent is invalid because they weren’t authorized under s. 55.2(4) of the act. The gov amended the regs in 1998 to make it easier for generics to access patents. They want an order directing Min of National Health to declare regs invalid. Arguing no prior consultation and thus a breach of a LE for consultation.

I: Can there be a LE arising from high gov official about what procedures will be followed?

D: No

Ratio: LEs are meant to preclude procedural arbitrariness, not the actual expectation of the individual who may have been aware of their existence.

Reasons: Democracy would be frustrated if notice and comment would be required for such legislative action leading to an amendment. There was an affirmation in writing that the Min would provide some sort of consultation, but breach of consultation doesn’t invalidate the new regulations. The CDMA met with the Minster after the regs came into place and those meetings didn’t result in changes to the regulations. Duty of fairness does not apply to exercise of powers of leg nature (Inuit Tapirisat), including regs in industries (CDN Assn of Reg Importers), therefore, no legal obligation to consult with CDMA.

NOTES

• Evans J here says that a breach of a promise by Cabinet is relevant

• LE deals with individual justice and the government must act within the bounds of what it says when it makes a representation to a group

• Where LE arises from an agency’s past practice or non-statutory procedural guidelines, it serves to preclude procedural arbitrariness (not expectation of individual)

• When LE arises from promise given to a group or person, rationale for holding gov to it goes to the reliance interest for individual’s right (para 121)

• LE is not confined to the exercise of statutory powers

PART III: ISSUE ESTOPPEL

Mt Sinai Hospital v Quebec 2001 SCC

F: hospital was functioning in violation of license for years. Min promises that if they relocate, license would be re-granted. When they did, a new Min refused on basis that it would commit too much financial cost to the government. H seeks mandamus.

I: Did the Min violate the LE of the hospital?

D yes; appeal dismissed (there was entitlement to license in light of original decision)

Ratio: LE looks to the conduct of the public authority by assessing 1) established practices 2) conduct or representations that are clear, unambiguous and unqualified 3) expectations that don’t conflict with public authority in the statute.

Issue estoppel in public law requires analysis of legislative intent to determine whose exercise is to be estopped. There are high evidentiary grounds to prove this which include detrimental reliance and knowledge.

Reasons: Estoppel is narrowly applied to Ministerial actions. S. 138 allows the Min to make determinations regarding the old policy (public discretion). LE looks to the conduct of government authority. It focuses on regularity and certainty. ‘Procedure’ is a broad term here which is not limited to the making of representations.

NOTES:

• While the LE is raised here, it doesn’t result in a permit

• Because the court notes that ‘procedure’ is a broad term, it opens up an availability of procedural, ancillary remedies

• Once the minister made his decision here, the decision is functus officio

PROCEDURAL DESIGN (SUBSUMED WITHIN BAKER ANALSYIS)

1. WHAT IS THE NATURE OF THE INTEREST AFFECTED (BAKER 3)

2. COST BENEFIT ANALYSIS

   1. COSTS = FISCAL AND ADMIN RESOURCES; SPEED AND EXPERTISE

   2. BENEFITS = REDUCING RISK OF ERRONEOUS DECISION

CHAPTER 5: CONSTITUTIONAL DIMENSIONS

Cases: Singh, Charkaoui I, II, JG

Bill of Rights	Charter of Rights
Does protect property (s. 1(a)) 1(a): it is hereby recognizes and declared that in CDA there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following HRs and fundamental freedoms, namely: the right of the individual to life liberty, security of the person, enjoyment of property and the right not to be deprived thereof except by due process of law	Doesn’t protect property
Broader at s. 2(e) and produces cumulative effects 2(e): every law operates notwithstanding BOR and shall not abrogate or apply to deprive persons of right to fair hearing in accordance with PFJ for determination of rights and obligations	s. 7 is not as broad as the s. 2(e) requirement
No s. 32 requirement for gov’t action prior to application – applies to all bodies exercising federal power	s. 32 requires government action for charter application
s. 2(e) potentially applies to corporations too	S. 7 doesn’t apply to corporations

• s. 26 Charter: guarantees in Charter do not abrogate from any other rights existing in Canada (including BR)

• AL isn’t wound up on Con Law – procedural fairness derives from legislative intent

• BORs guarantees what the Charter doesn’t. Three dimensions in BOR extended:

  • 1) individual and person in BOR, rather than “Everyone” in s. 7

  • 2) inclusion of “enjoyment of property” in s. 1a

  • 3) 2(e) guarantees ‘determination of rights and obligations’

• Federal Interpretation Act demonstrates person includes corporation unless context indicates otherwise (s. 35(1))

• Legislative intent can replace many procedural safeguards, but not a constitutional right

• BUT, a very clear LEG intent would override BR because it’s quasi-constitutional, unlike Charter (BR wouldn’t apply to Bds provincially or universities – recall it only applies to federal bodies)

• TRIGGERS for 1(a): individual looking for due process of law, 2(e): persons, looking for fair hearing

Singh v Canada 1985 SCC

F: refugee claimants seeking status – denied by Refugee Status Advisory Cttee – appeal to IAD; rejected oral hearing. Sought judicial review under s. 7. PROCESS: s. 45 Immig Act allowed inquiry into status, deferral to Ministerial determination, referral to Cttee (written proceeding), then IAB (written proceeding).

I: Was there a fair opportunity to present the claims and meet the case? Can s. 7 override the absence of procedural fairness?

D yes; (s. 7 impaired due to process)

Ratio: There is no right to enter or remain in Canada for non-citizens. Triggering of s. 7 doesn’t necessitate an oral hearing – s. 7 can be subject to a s. 1 analysis.

Reasons: Disclosure of the government’s case against him and the opportunity to meet the case is a requirement (like Suresh). Board is quasi-judicial and requires full natural justice principles. Although the cttee is insulated, there is a duty to act fairly. To determine if s. 7 has been violated, we must look to 1) what the rights of the individual are and 2) then ask if the deprivation constitutes a deprivation of s.7.

NOTE

• The crux of the issue in Singh is that he doesn’t know the Minister’s concerns

• S. 7 has the same 5 factored Baker analysis

• Wilson J (comment is just a concern, not law): where there is a serious issue of credibility, fundamental justice requires an oral hearing – but note Singh is pre-Baker and Suresh

  • Suresh was not granted opportunity for oral hearing because the court’s later interpreted such a requirement as a collapse on the immigration system

  • Wilson J is using s. 7 as a guiding factor

• Beetz J (concurring): there ought to be at least 1 oral hearing under BOR

  • Looks at s. 2(e) of the BOR

• Court realizes that the oral hearing is not a practical implementation here, despite the fact that they mention it should be given

• How procedural fairness applies varies with the particular context, according to Singh

Charkaoui v Canada 2007 SCC (pre-special advocates’ system)

F: C is a PR, while A and H are foreign nationals recognized as convention refugees. All on security certificates by reason of involvement in terrorist activities. Attack on regime due to no notice and comment under s. 7 (using Baker steps)

I: Does the procedure violate s. 7 of the Charter?

D: appeal granted

Ratio: Non-disclosure provisions for reviewing a certificate do not conform with PFJ in s. 7 and are of no force or effect. Extending periods of detention under the regime does not violate the Charter if accompanied with a meaningful review process. The detention process is not discriminatory under s. 15.

Reasons: An oral hearing was required here because he has been detained. Since there is no independent advocate system, the court may not be making a decision on the facts and the law. The judges can still be impartial because they can ask questions.

Before the statute can detain a person, there must be a fair judicial process which includes: the right to a hearing before independent and impartial magistrate, decision on fact and law and to know the case and be able to respond to it. The process is not minimally impairing – the judge cannot compensate for the secrecy of the material.

A 120-day detention for a FN does not comply with ss. 9 and 10c of the Charter. The review process should account for 1) reasons of detention 2) length of detention 3) reasons for delay in detention, 4) anticipated future length of detention 4) availability of an alternative.

SUMMARY OF REQUIREMENTS FOR A FAIR JUDICIAL PROCESS (JG and Charkaoui I – *not exhaustive)

1. right to a hearing

2. independent magistrate (that also appears impartial)

3. decision be made on facts and law

4. right to know the case and be able to respond

New Brunswick v JG 1999 SCC

F: application to extend custody order for 6 months. 15 witnesses were involved along with series of expert reports (complex hearings). All parties were represented excepted for the mother that was involved in the custody battle.

I: does voluntary subjection to the admin process generate a “life, liberty, and security of the person” claim?

D: yes; but note situation is exceptional (counsel ordered to represent JG)

Ratio: Fair hearing considerations must look to the following factors:

1. interests at stake

2. complexity

3. capacities of the mother

Reasons: JGs liberty was affected here because she was separated from her children. The right to security protects the physical and psychological integrity of the individual.

NOTE:

• the court is precarious about using the precedent in this case as a blanket provision for the legal aid system

• the court is clear that funded counsel is always required and that it is very particularized in this case

Charkaoui II 2008 SCC

F: C challenges government on grounds that it breached duty to disclose relevant information in its possession. In an ex parte hearing, fresh allegations were presented before the judge and a summary was disclosed to C. When he asked of disclosure of notes, he was notified that CSIS interview notes were destroyed.

Ratio: A fair process requires that more than a summary of the evidence against an individual is disclosed. Despite national security issues at stake, PF requires disclosure. CSIS is required to disclose information to the Ministers and judges.

Reasons: CSIS should only retain documents that are not of a general nature. PF requires that an individual know the case and be able to meet it accordingly. Nonetheless, C had sufficient time to prepare for the testimony after the new evidence was released.

CHAPTER 6: STATUTORY POWERS ACT RSO 1990

• In the 1990s, there was a question as to how statutory decision makers should be held accountable

• The result was the enactment of the Judicial Review Procedures Act which consolidated prerogative units and expanded them

• The legislation assists tribunals/admin bodies in understanding what their proceedings should look like

• S. 3, SPPA requires the following elements for the SPPA to be applicable:

  • 1) a tribunal exercising a statutory power of decision

    • s. 1: power or right, conferred by or under a statute to make a decision deciding or prescribing

  • 2) statutory function

  • 4) statutory decision must have a significant impact

  • 5) act applies if a hearing is required by statute or CL

• the statute does not apply to tribunals in the following places under s. 3(2):

  • 1) before assembly or any cttee of an assembly

  • 2) in or before COA, Ont G Div, Ont Prov Div, Unified Family Ct, Small Claims, JOP, anywhere where Civ Procedure rules apply, before arbitrator under Arbitrations Act or Labour Relations Act, coroner’s inquest, commission under Public Inquiries Act, 2 step proceeding where a person doesn’t have dispositive legally biding powers, tribunal empowered to make regulations, rules or by laws insofar as power to make regs, by laws or laws is concerned

Key extractions from the SPPA

1. must be construed liberally to secure the just, most expeditious, and cost-effective determination of every proceeding (s. 2)

2. proceeding can be dismissed if it’s frivolous, vexatious or commenced in bad faith, proceeding relates to matters outside jurisdiction of tribunal or some aspect of statutory requirements for bringing application hasn’t been met (4.6(1))

3. written, electronic or combined hearings on consent (s. 5.1)

4. disclosure of info that tribunal has (s. 5.4)

5. formal notice (ss. 6, 24)

6. Pre-hearing access to evidence: reasonable information for allegations that bring good character, propriety, conduct or competence of a party (s. 8)

7. right to counsel (s. 10)

8. open hearing in public, with exceptions (s. 9)

9. calling of witnesses/cross-examination (s. 10.1(b)), 10.1(a))

10. reasons for decision if party requests (s. 17)

11. relaxed rules of evidence (s. 15)

12. counsel for the witnesses (s. 11)

13. electronic hearings (s. 5.2)

14. pre-hearing conferences (s. 5.3)

CHAPTER 7: NOTICE, DISCOVERY AND DELAY

PART I: NOTICE

• PURPOSE: PARTICIPATORY

Cases: Taylor, Krever Commission, Chester

• problems in this area deal with 1) form, 2) manner of service 3) time and 4) contents

• two forms of notice are written and oral (SPPA requires either)

• notice specification depends on the nature of the interest and the issues

• notice should be given before the date of the hearing to allow the parties to participate and prepare

• reduces opportunity for error

• varies with quasi judicial matters (ex. Brazeau RCMP probe)

• allows for case to be met – facilitator

• the design of notice requirements become more detailed with judicial/quasi judicial matters

  • ex. Hardy and Minister of Education 1985 BCSC: closing of a school known throughout district generally so that it can reasonably be expected to come to the attention of interested persons and they have a fair opportunity to present their side of the case

• RECALL: no rights at the investigatory stage (Irvine)

R v Ontario Racing Commission, Taylor 1970 ONHC (aff’d ONCA)

F: horse given prohibited substance before race to enhance. Owner questioned, suspended and fined before the race. Written notice indicated that the test was positive and “your presence is required to provide an explanation for this positive test. You have the privilege of being represented by counsel of your choice at this hearing and of introducing witnesses on your behalf”. Sought certiori.

I: Did T receive adequate notice?

D: No

Ratio: Notice should clearly advise the individual of the contents of the hearing and potential penalties involving a claim against an individual.

Reasons: ambiguity in the phrase “your presence is required to prove an explanation”. It’s insufficient that he was advised that he was entitled to employ counsel – he should have been clearly advised of the penalties, namely the suspended/revoked license.

NOTE:

• court demonstrates criticism towards procedure here

• because there is an adverse result with serious consequences, the nature of the interest requires a more specific notice

• since Baker 3 is engaged here (re: importance to the individual), adequate notice is justifiable

• issues pertaining to notice are not confined to pre-hearing notices but can also arise in the course of a hearing

R v Chester 1984 Ont HC

F: prisoner transfer issue – was given notice that transfer was being considered and submissions were invited. Notice said: “ your violent and threatening behaviour and your assault on a staff member which occurred on July 6 1982”

Ratio: Notice must be adequate enough so as not to be misleading. Issues about notice are not confined to the pre-hearing phase.

Reasons: There was no notice that the visit dealing with his fiancé on July 6 was the subject of the concern for transfer. The incident doesn’t clearly delineate what will be addressed. Notice, hearing and penalty are all invalidated due to the default of procedural conditions.

NOTE:

• the hearing inside the prison is quasi-judicial – it deals with who did who, when, where, why and with what intent. Although it’s not a court, the procedure looks like one

Canada (AG) v Canada (Krever Commission of Inquiry on Blood System in Canada)

F: inquiry into infection of over 12 000 CDNs with Hep C and 1000 persons with HIV. Inquires Act permitted Gov to appoint Krever J of ONCA to review case. Inquiries act requires that charges of misconduct must provide reasons for a full opportunity to be heard in person by counsel. The persons against whom the reports were made challenged – they allege they were late, inadequate and involve criminal/civil liability.

I: Was the notice sufficient in this case and did the commissioner exceed his boundaries?

D: notice sufficient; no boundaries overstepped (appeal dismissed)

Ratio: Inquiries should generally follow the following elements:

1. no jurisdiction to determine legal liability

2. does not follow laws of evidence or procedure

3. avoids setting out conclusions couched with civil/criminal liability

4. can make findings of fact to explain recs

5. can make factual findings of misconduct

6. may make finding of failure to comply with standard of conduct so long as liability not imposed

7. procedural fairness required in conduct of inquiry

Reasons: Some of the misconduct may not have been discovered until later in the process given the length and the nature of the investigations. The more complex the evidence, the more justifiable later notice can be. The commissioner did not exceed his jurisdiction with the context of the notices involving allegations. His mandate was to review the blood system in the 1980s. He prefaced his report by indicating that the results did not involve criminal/civil liability.

Pikangikum FN v Canada 2002 FCT

F: notice was sent re: appointment of the third party manager with included concerns about the water treatment, hydro issues.

Reasons: Timing: decision to appoint a third-party management has already been made at time when notice was issued: “The decision to appoint a third party manager has been made because…”. Adequacy: concerns with management of water regime not expounded upon. There is insufficient detail to allow for meaningful discussion.

PART II: DISCOVERY

Cases: Northwestern, CIBA, Ncrej

• Often based on statutory authorization

• Stinchcombe is important with respect to disclosure, but the principle of disclosure is already a component of the duty of fairness in Nicholson

Ontario (HRC) v ON (Bd of Inquiry into Northwestern Gen Hospital) 1993 Ont Div Ct

F: Bd of inquiry set up under OHR Code to hear complaint of racial discrimination made by ten nurses at a hospital. Commission ordered to provide respondents with statements made by them to investigators at investigation stage in writing or copied. Bd said docs would be privileged at investigation stage. Considered ss. 8 and 12 of SPPA re disclosure and summons for evidence, respectively.

I: What degree of disclosure is req’d to meet duty of fairness?

D: full disclosure; application dismissed

Ratio: Stinchcombe obligations impact administrative hearings. This is conferred in s. 12 of the SPPA re: claims of privilege.

Reasons: Like rationale in Stinchcombe, disclosure is not the property of the board of inquiry. Disclosure is key to entice more claimants to come forward with allegations of racial discrimination. Denying disclosure would be contrary to fundamental fairness obligations.

NOTE:

• S. 12 of SPPA was amended – don’t conflate the provision with the requirements of Stinchcombe. Stinchcombe is the better take-away from this case. The tension between disclosure and the SPPA isn’t relevant any longer.

• The nurses are not happy with the disclosure of documents because they feel people will not come forward with similar allegations

• The court remarks that the allegations are serious and they could damage the reputation of the individuals involved, which warrants disclosure

Nrecaj v Canada (Min of Employment and Immigration) 1993 FCTD (BAKER 3 drives this case forward re: implications on the individual)

F: failure to make pre-hearing disclosure re: interview notes for convention refugee.

Held: In CR application, claimant must be able to make full answer and defense to evidence against her which could impeach her credibility.

CIBA-Geigy v Canada (Patented Medicine Prices Review Bd) 1994 FCA

F: Patent Act Board scheduled hearing to determine whether a specific drug marketed by the appellant was sold at an excessive price. S. 83 under Act mandates consequences including price reduction, payment to government to offset excess corporate revenue or offset up to twice of excess revenue. Bd refused disclosure for review of case under s. 83 hearing.

I: Did the Bd err by refusing disclosure?

D: no; appeal dismissed

Ratio: Where individual is advised of the case she has to meet and is provided with documents to be relied upon, doctrine of fairness and natural justice are met. Where commercially sensitive information is acquired, disclosure may not be required.

FCT Reasons: curial deference must be given to the Bd here unless fairness or natural justice requires otherwise. Tribunals are required to receive confidential information that cannot be disclosed sometimes – proceedings of tribunals are not intended to be as adversarial as proceedings of the court.

FCA (reverses FC): Stinchcombe doesn’t apply here because there are serious economic consequences for an unsuccessful patentee at a s. 83 hearing and a possible effect on a corporation’s reputation in the market place.

NOTES:

• At the pre-hearing stage, the balance is in favour of confidentiality

• Essential nature of pre hearing evaluation is to narrow the evidence down, otherwise the inefficiencies are major

PART III: DELAY

Reasons for delay may or may not include:

1. high caseload

2. awaiting criminal proceedings to be decided

3. complaints that can be based on events that occurred many years prior

• s. 11 of the Charter, while restricted to the application of criminal law, has an impact on s. 7 with respect to principles of fundamental justice that are relevant to delay cases

• Blencoe acknowledges that there are 2 dimensions in the context of statutory decision-making –delay that affects adequate responses to proceedings and abuse of process

Kodellas v Saskatchewan 1989 SKCA

F: 3 years and 11 months between first complainant filed and a hearing. Complaints concerned alleged harassment in the workplace towards women by K.

I: Was there an unreasonable delay?

D: yes; appeal dismissed

Ratio: With respect to an unreasonable delay in s. 7 of the Charter, the following factors should be weighed:

1) whether the delay complained of is prima facie unreasonable

2) reason or responsibility for the delay having regard for conduct of complainants

3) prejudice or impairment caused to alleged discriminator by delay

Reasons: time lapses are too long for proceedings to commence. No evidence that complainants were responsible for the delay. K didn’t waive time periods and thought hearing came to an end after giving statements. Delay appears ascribable to commission with no explanation – there may be an issue with institutional resources. It was difficult to find them and many of them couldn’t remember what happened. Prejudice was unclear.

CHAPTER 8: ORAL HEARINGS, OPEN HEARINGS, RIGHT TO COUNSEL

Courts distinguish between adjudicative and legislative facts.

Adjudicative (5 Ws and Intent)	Legislative
SPECIFIC Concerns parties, businesses, activities, etc. Parties should be able to rebut these facts because those facts pertain to them specifically	GENERAL Don’t concern the parties Foundational for law making, policy or exercising discretion Trial procedure doesn’t increase the accuracy of the facts Trial procedure cant resolve interpretation of experts Trial procedure is meant to elicit adjudicative facts

PART I: ORAL HEARINGS

Cases: Masters, Khan

• face to face encounter with decision maker and where relevant, other parties

Indicators justifying oral hearing:

1. factual finding are critical to the decision

2. facts are contested

3. at issue with the adjudicative facts is credibility

4. high baker 3 reading – there is a serious interest to the person

5. factual finding = final (no review)

• oral hearings are not always required (Komo Construction v Commission des Relations de Travail du QC 1968 SCC)

• courts give agencies discretion with respect to whether an oral hearing is held (Delmar Chemicals)

• Singh: there is no oral hearing requirement as a universal component to PFJ, but it should be exercised when there is a credibility issue

• Hundal: oral hearing not required for license suspension, despite s. 7 application

Masters v Ontario 1994 Ont Div Ct (Quasi-legislative decision)

F: M was agent general for ON in NY. He allegedly sexually harassed 7 women – Bob Rae reassigned his position to someone else and suspended him with pay. M denies allegations to all incidents, lawyer interviews witnesses again and doesn’t share results of interviews. Report given to secretary of cabinet with M’s response. M applies for JR re: breach in natural justice. Alleges he didn’t sit in on 45 interviews, was refused list of names, copies, interview transcripts, etc.

I: Is M entitled to an impartial decision maker to determine credibility matters?

D: no; application dismissed

Ratio: Where an individual holds an office at pleasure, is aware of the material allegations against him and is provided with an adequate opportunity to be heard, an oral hearing may not be required.

Reasons: M was in a senior position which the Minister had the prerogative to dismiss. Duty of fairness does not require government to direct witnesses to questioning. His counsel had opportunity to question the witnesses – there were no material changes to the allegation thereafter. The premier wasn’t conducting a trial here and there was a much greater margin of error. Allegations were never adjudicated and this is an investigatory process which is not required to afford all safeguards at trial.

NOTE

• This case involved significant media attention given that he was appointed by the NDP provincial government after they assumed office – it occurred at the height of the rising tide of feminism

• The process here is investigatory – there are minimal rights, if any (recall the holding in Irvine)

• Rae’s actions were politicized – dismissal is made in light of offering other positions -> tells M that there is an opportunity to sue in tort

• M’s reputation is destroyed – there is a high Baker 3 factor here

• This case is on par with Suresh in terms of no oral hearing emanating from a quasi legislative decision

Khan v University of Ottawa 1997 ONCA

F: law student appeals grade to Faculty examinations cttee. 3 exam booklets evaluated – a fourth was mossing. Each labeled 1 of X but fourth was labeled insert in red. She claims she handed four in, but professor only has 3. Without passing grade on evidence exam, she would fail semester. She appeals to Senate Cttee and doesn’t appear. JR dismissed at divisional ct.

I: Was K denied procedural fairness?

D: Yes; appeal allowed

Ratio: Oral hearings are not mandated, but where there is an issue of credibility and there are serious consequences linked to an adverse finding, an oral hearing may be warranted. Proof of breach of PF needs to reasonably have prejudiced her.

Reasons: K should have had an oral hearing before the Cttee – and it should have looked to the exam procedures. 12.03(a) of faculty regs state that a grade review is warranted where it appears that the result was a significant error or injustice. Chair of the cttee acknowledged here that without the fourth book considered, there would be a great injustice. Case hinges on credibility – it’s about whether she’s telling the truth about the fourth book.

Dissent: no authority requires that student should be heard orally for exam review. Her case is distinguishable from Singh because the stakes are not as high – she argues PFJ but they do not apply here. At most, her delay is a semester’s worth.

NOTES:

• Keep in mind here all of the factors that underlie these questions: the Baker factors, LEs, indicators of an oral hearing, how procedural fairness operates between administrative and quasi judicial decisions

• Baker 3 factor is extremely high here

PART II: OPEN HEARINGS

• S. 9 of the SPPA holds a presumption in favour of open hearings and considerations

• Discretion of the tribunal determines if there should be an open hearing (Re Millward and Public Service Commission)

• Hearings before IRB in the Refugee Division are still held in camera unless claimant applies to have it held in public

• In some professional disciplines, public policy rationale is to keep disciplinary hearings closed in order to ensure that reputation of members isn’t compromised

• Factors dealing with the protection of privacy of victims contributes to whether hearings will be open or not

Ottawa Police Force v Lalande 1986 Ont Dist Ct

• Officer charged in disciplinary proceedings for having sexual relations with prostitutes while on duty. His request for an in camera proceeding was opposed by news outlets and rejected.

  • His request abrogates from s. 9 of the SPPA re: presumption of open hearing

Pacific Press v Canada 1991 FCA

• Challenge to s. 29(3) of IRPA which required that hearings be in camera for refugee division proceedings

• H: justifiable under s. 1 of the Charter (Act was later amended)

PART III: RIGHT TO COUNSEL

Case law: Men’s Clothing, Irvine, CRTC, Parrish, Deghani, Secretary of State, Howard

• s 10 of the SPPA provides for representation by counsel or agent for parties to proceedings in the act

Indicators for this right include:

1. complex legal issues (see JG)

2. complexity of procedure

3. capacity to present one’s own case

4. possibility of criminal charges

5. High Baker #3 factor

6. Requirement for speed, efficiency and cost

Re: Men’s Clothing v TO Joint Board 1979 Ont Div Ct

F: disputes with men’s clothing industry to TO resolved by arbitration without lawyers. The practice to do so without lawyers had been ongoing for 60 yrs. Men’s clothing association made statement that it wanted to change practice and use lawyers for some disputes. Legal representation not addressed in collective agreements. Arbitrator decides that right to counsel provisions from SPPA don’t apply to arbitration provisions based on 3(2) of SPPA.

I: Do the parties have an absolute right to legal representation?

D: yes; application granted

Ratio: To determine the rights of participants in arbitration, one must look to the wording of the agreement and the surrounding circumstances.

Reasons: arbitrator didn’t have the authority to limit counsel’s submissions re: chairman’s authority. Natural justice requires that legal representation is not prohibited. Given the complexity of this issue both in fact and in law, natural justice requires that the union be represented by lawyers without limitation at arbitration.

NOTE:

• A corporation cannot appear on its own in court

• The consequences are high for the company (Baker 3 re: arbitration effects)

Irvine v Canada 1981 SCC: there may be occasions in the course of hearings where counsel will be allowed to be present but not parties that counsel represents.

BUT…

Canada (CRTC) v Canada (HRT) 1990 FCTD: normally, both counsel and party are entitled to be together and consult throughout the hearing.

Re Parrish 1993 FCTD

F: captain of a ship that collided with another was summoned before investigator appointed by the Bd under s. 14 of the Canadian Transportation Accident Investigation and Safety Board Act 1989. He appeared with 2 counsel and the board refused counsel’s presence.

I: Can the captain attend the hearing and given evidence under oath without presence of counsel?

D: No (oral interview should have been provided with ability to bring his counsel)

Ratio: Duty of fairness implies presence of counsel when a combination of some or all of the following elements are found within the enabling legislation or implied from practical application of statute:

1. where individual subpoenaed

2. requirement to testify under oath with threat of penalty

3. absolute privacy not assured and attendance of others not prohibited

4. reports made public

5. individual can be deprived of rights or livelihood

6. irreparable harm can ensue

*Note that factors are non-exhaustive

Reasons: Board can prohibit attendance of more than 1 counsel and it would be up to investigator to determine if more than 1 would seriously impede progress of investigation. Bd can determine its own procedure, and those decisions can be subject to JR. Parl’s intent to summon a witness shows that the stakes are high and the leg presumed counsel would be available. **Irvine is distinguishable here because that evidence was not published, but rather made available only to those against whom the allegation existed.

NOTE:

• this case deals with an ORAL interview, not a hearing

• the court isn’t satisfied that Irvine governs

  • the statutory power exists to compel the captain to come forward, but there is nothing in there about counsel rights

• the Q here is whether the court wanted to fill in the omission for the legislature since the statute does not provide for counsel -> and it did

• the key factors here are Baker 1 (nature of the decision) and Baker 2 (the statute informing the decision)

• since the board has the regulatory powers, it could potentially deprive P of his livelihood and adversely impact his reputation

Deghani v Canada (Min of Emp/Immig) 1993 SCC

F: D entered POE and claimed refugee status. Three stage process: POE (no counsel), secondary inspection (no counsel), credible basis hearing (de novo). Referred to secondary examination without any supporting documents for his claim. He was found not to have a credible basis and denied counsel at the second stage. He argued his s. 10(b) and 7 rights were infringed.

H: 10(b) does not apply to person seeking entry to CDA at a secondary examination because detention has not been triggered.

R v Secretary of State for Home Dept 1984 QB: no CL right to be represented by counsel with respect to prison transfer. Bd has discretion to disallow representation that was derived from its general power to regulate its procedures.

FOR Counsel in a criminal trial, the following factors may be of assistance:

1. seriousness of the charge

2. points of law that are likely to arise

3. capacity of particular prisoner to present his own case

4. procedural difficulties

5. need for speedy adjudication

6. fairness need between prisoners and prison officers

Howard v Stoney Mountain

F: inmate sought order dismissing hearing in absence of counsel. 5 charges laid against him under s. 39 of the Penitentiary Service Regulations. Admin disciplinary code doesn’t give right to counsel. He had over 200 days of earned remission. Argues regs infringe his s. 7 rights. He’s charged with an act calculated to prejudice, discipline, and good order.

H: s. 7 doesn’t create an absolute right to counsel. Whether or not a person has a right to representation by counsel depends on the case, nature, gravity, complexity of inmate to understand case and present defense.

*Like JG where lack of knowledge and difficulty of defending is key to access counsel

Joplin -> ct finds s. 7 violation given regs not allowing for counsel. Officer subjected to undermined rank in the force.

CHAPTER 9: DISCLOSURE, ACCESS, PRIVILEGE AND EVIDENCE

PART I: DISCLOSURE

Cases: Kane, Napoli, Gough, Toshiba

• giving a party information an agency has about a decision to be made

• this is distinct from the Stinchombe requirement in the criminal process

• agencies may choose to consult an individual through official notice

• such information may involve judicial notice or be officially noticed as part of information that the agency has

Reasons for disclosure include:

1. individuals should know about what the government knows about them

2. increases participation of persons in decisional process that affects them

3. increases accountability to boards

4. adds time, complexity and expense

5. agencies receive information in confidence

6. agency receives sensitive business information competitions want

7. security privacy

Access to Information Statutes

• Important part of preparing for a regulatory hearing

• Does not warrant denial of disclosure in proceedings to which procedural fairness rules apply

• Acts complement entitlements to access

• Reasons that dictate that CDNS should have access to certain kinds of info may simply lose their force in context of proceedings that affect particular rights or interests of a specific CDN

Crown/Executive Privilege

• S. 37(1) CEA: Min of Crown can object to disclosure of information to court due to public interest

• S. 38(1): where objection to disclosure of info made under 37, on grounds that disclosure would be injurious to national security, application only determined by Chief Justice of FC or other judge of that court designated by CJ

• S. 39(1): Min of Crown or Clerk of PC can object to disclosure of information on confidence of PC and information can be refused without examination or hearing of info by court

• Privilege is governed by the CL – the last word with privilege lies with the Courts, not the exec (Cary v ON 1986 SCC)

• CL also governs solicitor client privilege, and adjudicative privilege (presumption of deliberative secrecy)

Kane v Bd of Govs UBC 1980 SCC (FURTHER INFORMATION IN PROCEEDING)

F: prof suspended by president for improper use of computer facilities. Appealed to BOG (president of Bd was a member). K attended hearing before BOG; BOG meets for dinner without him after to discuss case. K made app for review which was dismissed twice.

I: Did the BOG act unfairly by not providing access to subsequent meeting?

D: yes

Ratio: Where there is a possibility that further information could be put to a decision maker, the subject of the proceeding should be aware of the information and provided with an opportunity to respond.

Reasons: BOG under obligation to post pone until K could be present and should have made him aware of the facts/provided him with opportunity to correct adverse statements. Bd erred.

Re: Napoli and Workers’ Compensation Bd 1981 BCCA

F: N made application to officer for disability awards and received 5% compensation. Bd sends investigator to follow N; he alleges he cant move. There are 30 reports and expert opinions – evidence shows he is capable of working. She requested it from the officer, it went to the board of review and then to the WCB. Appealed to BOR and rec’d 4 pg summary of information. TJ said summaries of file didn’t satisfy nat’l justice requirements.

I: Did WCB err by failing to give opportunity to pursue file when appealed?

D: Yes

Ratio: Disclosure standards determined by looking at procedure and nature involving decision. Rule of natural justice applies to hearing before BOR and commissioners listening to appeal, which requires disclosure.

Reasons: The summary provided was inadequate. Allegations are serious and N would have wanted to cross-examine writers of original reports that resulted in summaries. N would likely counter damaging statements. High standard of justice req’d. Disclosure was ineffective here.

Gough v Canada (National Parole Bd) 1990 FCTD

F: G on parole for 5.5 yrs. Alleged complaints of sexual assault and drug use which resulted in parole revocation. Reg 17(5) of Parole Regs allows non-disclosure of information. G did not receive information about details re: incidents and victims alleged. He sought quashing of decision under s. 7

I: Did the Bd err by not disclosing information to parolee?

D: yes; insufficient details provided (s. 7 infringed; not just by s....

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