P R O C E D U R A L F A I R N E S S
#2: Sources of Procedural Obligations
Step 1: The Various Sources
What are the procedural obligations that administrative decision-makers must observe when exceeding their powers? Look at:
(a)Terms of the Enabling Statute –Actual Legislation (i.e. Singh v Canada and Immigration Act…)
-Prescribing specific procedures in an administrative board’s enabling statute
-Trigger – in the legislation itself (but see if statue leaves room for common law influence)
(b) Subordinate Legislation: administrative policy/practices – Delegated Legislation to the executive. Tribunals. (i.e. Manitoba’s Labour Relations Act confers on the Labour Relations Board of that province, the power to enact rules of procedure)
-Tribunals have more expertise and are more efficient than the legislatures
-Trigger – within statue (but see if statue leaves room for common law influence)
(c) Policies and Guidelines – Soft Law. (i.e. SSC in Baker relied on ministerial guidelines as a useful indicator of what constitutes a reasonable interpretation of the minister’s power to grant humanitarian and compassionate exemptions to Canada’s immigration law)
-front-line decision-makers will sometimes rely almost exclusively on guidelines to makes decisions and refer to their enabling statute (a) only when these guidelines are not clear
(d) General Procedural Statutes – Ontario’s SPPA; Alberta’s APJA; Quebec’s AJA; B.C’s ATA. (i.e. Ontario’s Human Right’s Code provides that the provisions of the SPPA apply to any proceeding before the Human Rights Tribunal [unless they conflict]).
-Once triggered, these codes prescribe common standards for the decision-makers within their territory. These statues provide standards for varying specificity, including right to give reasons for a decision and/or right to make representations…
-These procedural codes may be modified or limited by a public authority’s enabling statute (a) and delegated legislation (b)
-Trigger – this contains its own “trigger” (but see if it leaves room for common law influence)
(e) Common Law – If a particular procedure is not required by a public authority’s enabling statute (a), valid delegated legislation (b), or a general procedural statute (d), or if the procedure is required only to a limited extent (d), the authority may be obliged to provide an effective party fuller procedural protection under the principles of common law procedural fairness. (i.e. past cases)
-These are judge-made principles, a party affected by a public authority’s decision is entitled to be heard by the authority in an impartial and independent hearing.
-The decision-maker must “hear the other side”, and must not be “a judge in his own case”
-Trigger - 2 “triggers” for this source (Legitimate Expectation; Knight) see below
(f) Charter of Rights and Freedoms – section 7 (details below)
-Trigger – sec.7
(g) Bill of Rights – section 1(a) and section 2(e) (details below)
-Trigger – sec.1(a) and sec. 2(e)
*THUS – look at legislation, delegated legislation, guidelines, and then common law. Remember to think about Charter and/or Bill of Rights as well.
#3: Procedural Obligation Triggers
Step 2: The Triggers (or Threshold)
Since procedural obligations come from a number of different sources, where is a given procedural obligation “triggered”? (In other words, which procedural rule applies where…When will a duty of fairness (DOF) be “triggered”???)
i.e. If a procedural rule is from legislation, the answer to the “trigger” will be within the legislation itself
i.e. If a procedural rule is from a general statute, the answer to the “trigger” is also within that statute
*THUS – read that legislation to see if that statute relates to your decision-maker!
With regards to Common Law…determining whether a DOF applies is more ambiguous…therefore...
Source
Common Law
Trigger #1 for DOF Trigger #2 for DOF
Knight’s Three-Prong Trigger Legitimate Expectation
*where the requirements of these triggers are met, then procedural fairness is owed by the administrative decision-maker
Trigger #1: (history to current)
Nicholson (1979)– the more serious the consequences of the dismissal, the more need for greater fairness. AND The existence of a duty of fairness no longer depends of classifying the power involved as “administrative” or “quasi-judicial” (legislative). This is a less ridged approach to natural justice.
Re Webb (1978) –a PRIVILEGED holder is entitled to a DOF just like a right holder, but to a lesser degree than a right holder. There is a distinction between the HOLDERS of the benefits and the APPLICANTS for the benefits (applicants may not receive the same DOF protection). PRIVILEGE = a) applicant for privilege; b) expectation of privilege; c) forfeiture of privilege.
Hutfield (1986) – modifies Re Webb to even make PRIVILEGE SEEKERS (APPLICANT) have a DOF protection. A minimal DOF may be owed to an APPLICANT for PRIVILEGE if the decision affects the applicant’s reputation.
Re Abel (1981) – if an undecided decision or recommendation virtually affects/influences the final decision, then a DOF applies. The test whether natural justice (whether a DOF) will apply is: a) the degree of proximity between the investigation and the decision; b) the exposure of harm to the person being investigated are matters of paramount concern.
-so, not all recommendatory and investigative functions will attract an obligation to procedural fairness (affirmed in Knight: “a decision of preliminary nature will not in general trigger a duty to act fairly”)
Irvine (1987) – 3 factors to consider if fairness is required: a) character proceeding; b) nature of the report and whether it is made public; c) penalty that will result when report is received
*Knight (1990) – 3 Prong Trigger to determine whether there is a DOF:
a) The nature of the decision to be made by the administrative body;
-a decision of preliminary nature will not trigger a duty to act fairly, but a decision of a more final nature may have the effect to act fairly
· This provides us with a test for where procedural fairness will be found to exist by the courts (“preliminary” decisions)
b) The relationship existing between that body and the individual (employer/employee);
-classifying the nature of the employment (at pleasure or employee) is no longer necessary because administrative body must act fairly either way.
· This confirms that there is a distinction between administrative power and legislative power. AND that there is a relationship that exists between that body and the individual (private voluntary organizations)
àNOTE àDunsmuir (2008) – made this no longer true
c) The effect/impact of that decision on the individual’s rights (effect on the employee);
-there is a right to procedural fairness (DOF) only if the decision is a significant one and has an important impact on the individual
· This defines the meaning of individual “rights”. Fairness exists where rights, interests, property or liberties of the person affected by the delegate’s actions.
In Knight, it was held that the holder of an office “at pleasure” WAS entitled to be given the reasons for his dismissal and an opportunity to be heard before being dismissed. This has been overruled by:
**Dunsmuir (2008) – Where a public office-holder’s employment is governed by an employment contract, then any disputes relating to their dismissal should be resolved according to the express or implied TERMS OF THEIR CONTRACT, and ANY APPLICABLE STATUTES/REGULATIONS, just like any other contractual employee.
Thus, a public authority that dismisses an employee with an employment contract, is NOT subject to an ADDITIONAL public law DOF. Also, the public employee seeking to challenge their dismissal is limited to ordinary contractual remedies. Office holders at pleasure are not entitled to a public law duty of procedural fairness (DOF).
Pg 105 text: “…a public law DOF may still apply in the following 3 circumstances:
(1) Where a public employee is not protected by a contract of employment (judges, ministers, officials of constitutional state roles);
(2) Where an office-holder is expressly subject to summary dismissal;
(3) Where a DOF flows by necessary implication from the statutory power governing the employment relationship, including a statute that provides for notice to employees of a motion to dismiss.”
Trigger #2:
Legitimate Expectation = Promise
Old St, Boniface (1990) – LE is an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omissions where, based on the conduct of the public official, a party has been led to believe that their rights would not be affected without consultation.
Reference re Canada Assistance Plan (1991) – no procedural or substantial LE applied to Parliament implementing legislation. The Government should NOT be bound. Provinces should NOT expect a LE from the Government. (would paralyze the sovereignty of Parliament itself)
Furey (1991) – LE will apply to an administrative decision affecting procedure. LE creates PROCEDURAL rights, NOT substantive rights.
LE = those who deal with government bodies and agencies who hold power for the public good should be able to rely on representations made to them. The court will intervene by JR where a public authority attempts to reside from a representation made by them which caused a detriment to someone who has relied on that representation.
LE = there MUST BE a clear and unequivocal representation by the government authority/agency.
Mount Sinai Hospital (2001)–the test below ONLY APPLYING TO PRIVATE LAW…The party relying to the doctrine [of promissory estoppel] must establish that the other party has: a) by words of conduct, made a promise or assurance; b) which was intended to affect their legal relationship and to be acted on; c) the reliance on the representation caused him to; d) act on, or in some way, change his position
However, we are talking about PUBLIC LAW estoppel. Public law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be stopped. THE LEGISLATION IS PARAMOUNT.
“I do not think a court should estop the Minister from doing what he considers to be his duty"
Therefore…
LE = a promise or representation from a delegate, to proceed in a certain fashion, possibly resulting in a detriment when the promise is broken to a person who relied on the promise
LE = does NOT apply to a Legislative decision (only administrative),and does NOT apply to promises that conflict with statutory duties.
#4: Procedural Obligation Triggers
Step 3: Legislative Decisions and Emergencies
Common law procedural fairness rules (DOF) may fail to be “triggered” where there is a decision said to be of a “legislative” nature, or where there are emergencies.
“Legislative”:
Nicholson (1979)– the more serious the consequences of the dismissal, the more need for greater fairness. AND The existence of a duty of fairness no longer depends of classifying the power involved as “administrative” or “quasi-judicial” (legislative). (This is a less ridged approach to natural justice.)
*Martineau (1980) – distinguishes between judicial (legislative) and administrative functions.
A Legislative Act = the creation and promulgation (spread) of a general rule of conduct without reference to particular cases
An Administrative Act = cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practices
“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.”
*Inuit Tapirisat of Canada (1980) – the rules of natural justice are not applicable to Cabinet ministers (Legislative) or policy decisions since greater deference is given to Cabinet. Only where the executive branch has been assigned a function that has already performed in the past by the Legislature, AND if the case is NOT directed to an individual concern (but a group one), will it then be dealt with differently from that of Nicholson.
So - Parliament does NOT want to restrict Cabinet. Parliament intends Cabinet to act differently from that of an administrative board. Thus, there are no standards or guidelines imposed or implied for on Cabinet. This provides the Government with a quick and easy way to respond to changing public policies.
We know it is a Legislative Decision if:
-It is a function performed in the past by government and legislature itself
-It is NOT of interest specifically to the petitioner, but affects a broad range of people
*Homex Realty (1980) – The municipality made a policy decision that had an immediate and specific target. IF a decision affects a PRIVATE individual in particular, it will NOT be considered Legislative and the DOF will apply. If the decision affects many people, then the DOF would be less likely to be required since it has the potential of applying to a large amount of individuals.
“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual NO procedural protection…On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards, particularly when personal or property rights are targeted, directly, adversely and specifically”
Legislative Judicial (Administrative)
Broad range of interest Individual Rights at stake
“Polycentric” (Affects many people)
NO DUTY OF FAIRNESS FULL DUTY OF FAIRNESS
If Administrative (judicial) à single individual à DOF applies
If Legislative à group of people à NO DOF applies and NO protection
Canadian Association of Regulated Importers (1993) – the rules of natural justice are not applicable to legislative or policy decisions. Minister could consult to be considerate, but has no obligation to.
Canadian Shipowners Association (1995) – the more personal the issue, the more likely Cabinet’s power of review is to lose its legislative nature and the more the principle of fairness mentioned in Nicholson becomes applicable.
Vancouver Island – defines “Legislative” as: “the decision must be discretionary, usually, but not always, general in its application, based on the exercise of judgments after assessing factors of general policy, of public interest and public convenience, morality, politics, economics, international obligations, national defense and security, social, scientific or technical concerns, that is, issues of policy which lie outside the ambit of typical concerns or methods of the courts”.
Therefore…
“Legislative” Decisions = Broad, Policy-based Power
-usually discretionary, general in application, based on exercise of judgments considering general policy
-Where the impact of the decision being made is diffuse, affecting a BROAD spectrum of the public in a generally undifferentiated manner, claims to participatory rights will be hard to justify (unless the legislation contains some indication of public participation of obligations of consultation)
“Legislative” Decisions = Rule-Making
-Homex – by-law made with specific target in mind means it is not a Legislative decision,
therefore procedural protections were given.
“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual NO procedural protection…On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards, particularly when personal or property rights are targeted, directly, adversely and specifically. …It seems to me that a similar analysis should be employed…it is not particularly important whether the function of the municipality be classified as “legislative” or “quasi-judicial”. Such an approach would only return us to the conundrums of the earlier era. One must look to the nature of the function and to the facts of each case…”
NOTE:
“Legislative nature” v. “Legislative decision”
àA decision of “legislative” nature = NO procedural fairness given where an administrative decision-maker is introducing a form of delegated legislation (i.e. a regulation) AND when this occurs, the general rule is that it is subject to exceptions (Nicholson; Canadian Shipowners Association)
àA “legislative decision” = a decision that is sufficiently general, and not particular to or focused on a reasonably narrow subset of persons. A function performed in the past by government and legislature itself. It is NOT of interest specifically to the petitioner, but affects a broad range of people
Emergencies:
*Randolph (1966) – an interim order withdrawing the provision of mail services to an individual could be made WITHOUT a hearing when there is a statutory basis for making that decision based on the belief that the mails were being used for criminal purposes.
Cardinal (1985) – “because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision. …It is likely that the court will pay considerable deference to the relevant authority’s judgment as to the urgency of the situation”
#5: Procedural Obligation Triggers (Charter & Bill of Rights)
Step 3: Charter & Bill of Rights
“Triggers” for the common law have been established above. But the “Triggers” within other procedural obligations contained Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights are also difficult to identify.
Bill of Rights (only applicable to Federal Law)
Sec.1: 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;
Who can rely on this section: “Individuals”
Triggers: Deprivation of right to life, liberty, security of the person and enjoyment of property
Procedural Guarantees: “Due process of law”
Sec. 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;
Who can rely on this section: “Persons”
Triggers: When rights and obligations are being determined
Procedural Guarantees: Fair hearing in accordance with the principles of fundamental justice
*Authorson v Canada (2003) – NO procedural rights (specifically notice and hearing) are guaranteed by s.2(e) of the Bill of Rights regarding the passage of an Act of Parliament. AND s.1(e) of the Bill does NOT guarantee any substantive right’s to property (money).
Although this decision affected a specific GROUP of veterans, it was considered a “legislative decision” and so, NO DOF is owed (see Wells and Canadian Assistance Plan)
Wells – “Legislative decision making is not subject to any known duty of fairness. Legislatures are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject only to review by the electorate.”
Reference re Canada Assistance Plan – “the rules governing procedural fairness do not apply to a body exercising purely legislative functions”
*No procedural protections in s.1(a) and s.2(e) of Bill could apply to Legislative proceedings!
*Nor are they subject to a “Trigger”/Threshold similar to that established for common law procedural fairness!
Singh (1985) – per Beetz J on s.2(e): “the most important factors in determine the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned”
*Initially, the terms “right and obligations” in s.2(e) was narrowly interpreted by the courts and restricted to the taking away of “strict, legal rights,”
…all of that changed with the resurrection of the Bill of Rights in Singh.
Canada v Central Cartage – “The fair hearing guarantee in s.2(e)is not a frozen concept that remains static…in other words, the guarantee of a fair hearing in s.2(e) should be given a meaning that recognizes not only the interpretation and evolution of the term over time, but also the particular circumstances involved”
Charter of Rights
Sec. 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.
Who can rely on this section: “Everyone” (natural persons…not corporations)
Triggers: derivation of life, liberty and security of the person
Fundamental Justice: it means procedural fairness or natural justice (but precise content will vary depending on the circumstances). This provision imposes the requirement to observe “fundamental justice” on at least some administrative decision-makers (the ones making the decisions that go to life, liberty or security of the person)
Singh (1985) – s.7 applies to “everyone” in Canada (including refugees), otherwise the denial of such a right must amount to a “deprivation of security of the person”. AND s.7 does NOT always require an oral hearing.
“I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions…I am prepared to accept that written submissions may be an adequate substitute for an oral hearing in appropriate circumstances”
Chiarelli (1992) – balance of interest under s.7. an individual has an interest in a fair procedure, however, the state also has an interest in conducting national security and criminal intelligence investigations and in protecting police sources.
Charkaoui (2007) –
Wilson (1988) – Liberty, in s.7, is NOT confined to mere freedom of bodily harm. S.7 does NOT protect property or pure economic rights, however, it will cover livelihood which may have an incidental economic component.
*Blencoe (2000) – “security of the person protects against only serious psychological incursions resulting from state interference with an individual interest of fundamental importance. And it is only in exceptional cases where the state interferes in profoundly intimate and personal choices of an individual that state-caused delay in human rights proceedings could trigger the s.7 security of the person interest”
Can fundamental justice control the process by which Parliament passes laws? NO!
Wells – “Legislative decision making is NOT subject to any known DOF. Legislatures are subject to
constitutional requirements for valid law-making, but within their constitutional boundaries, they can so as they see fit. The wisdom and value of legislative decisions are subject only to review buy the electorate. The judgment of Reference re Canada Assistance Plan…was conclusive on this point in stating that… “the rules governing procedural fairness do not apply to a body exercising purely legislative functions.””
Aurthorson – “Long-standing parliamentary tradition makes it clear that the only procedure due to any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. Once that process is completed, legislations within Parliament’s competence is unassailable”
*NOTE – The reason it is difficult to identify the “Triggers” within Common Law, the Charter, or the Bill of Rights, is because the precise content of procedural rules coming from these sources varies from case to case according to the circumstances.
#6: Content of Procedural Obligation (Right to be Heard)
Step 3: Right to be Heard
Now that we have identified that there are various Sources, and identified that there are various “Triggers” which will trigger those Sources to determine whether or not Procedural Fairness (DOF) has occurred, we must now determine what occurs after a procedural obligation has been Triggered.
If procedural obligations are triggered, what does the decision-maker have to do? What is the content of these procedural obligations?
àIf the procedural obligation comes from STATUTE:
-The enabling act or one of the special legislated procedural codes (enabling/actual statute; subordinate legislation; policies/guidelines; general procedural statues), will determine the content.
-Whatever the statute says is the content, will be the content!”
-NOTE: although there may be occasions in which you will have to determine whether the statute is a “complete code” or leaves room for common law supplementation.
àIf the procedural obligation comes from STATUTE, but the “Trigger” is COMMON LAW, CHARTER (s.7), or the BILL OF RIGHTS:
-Generally, the content where these sources apply boils down to 2 broad classes of procedural rules:
(1) A Right to be Heard (Audi Altteram); and
(2) A Right to an Unbiased Decision-Maker (Nemo Judex)
(1)Right to be heard
With the Right to be Heard content, we must first start with the 5 Baker factors which give us a non-exclusive list of considerations that suggests whether or not the content will be robust (lost of procedural fairness, DOF).
SCC sought, for the first time, to lay out a methodology to determine the appropriate content of procedural fairness in:
**Baker (1999) – 5 factor test (notes pg.46. pg.256 text)
(i) The Nature of the Decision and the Process followed in Making it
(ii) The Nature of the Statutory Scheme and the Terms of the Statute Pursuant to which the Decision-Maker Operates
(iii) The Importance of the Decision to the Affected Party
(iv) Any Legitimate Expectations of the Person Challenging the Decision
(v) The Choices of Procedure Made by the Agency Itself (taking into account the decisions made by the tribunal)
*NOTE – Baker tells us that Legitimate Expectation never generates a claim to a substantive outcome, only to hearing entitlements which exists within procedural rights. ALSO, it will create procedural rights when certain outcomes are legitimately expected.
For example: If the “Trigger” is Legitimate Expectations, the content of the procedural
obligation is generally what was promised in the procedural promise that gave rise to the Legitimate Expectation in the first place.
Full Example:
Suresh (2007) – following 5 Baker factors to conclude that s.7 of Charter required procedural protections (must have the opportunity to know, meet, and make submissions to argue the case against him; to be heard), but NOT to the extent of a FULL ORAL HEARING, whether or not torture upon deportation was possible.
-Trigger in this case = s.7 Charter
-So the content of procedural fairness (DOF) must include = A Right to be Heard
-Sec.7 protects substantive as well as procedural rights, therefore, it is appropriate to look to the Baker factors to determine whether or not the common law DOF has been met….AND….decide whether or not the safeguards provided have satisfied the demands of s.7.
àTHEREFORE, HAS THE CONTENT OF DOF BEEN MET?
àGO THROUGH 5 BAKER FACTORS
(1) Nature of the Decision (administrative or judicial type) – the nature of the decision doesn’t indicate a weak or a strong procedural safeguard
(2) Nature of the Statutory Scheme – suggests that there is a need for strong procedural safeguards since there is no provision within the statute for a hearing, nor any requirement of written or oral reasons, no right of appeal…..est.
(3) Importance of the Decision to the Individuals – this factor is in favour of heightened procedural protections under the statute b/c a person subject to this section in the statute at hand, may be subjected to torture…
(4) Legitimate Expectation – this is not taken into account. Baker says that this is not always a relevant factor
(5) Choice of Procedures – the minister is allowed a lot of discretion in this case, so therefore, a lot of deference must be provided. The legislature knew that these types of decisions would be very serious and as such, left it to the minister to determine.
HELD: based on the 5 Baker factors, the court was of the opinion that the procedural protections required by s.7 in this case, DO NOT extend to a level of requiring the Minister to conduct a full oral hearing or a complete judicial process…but they DO require more than the procedure required by the Act under s.53(1)(b) (more than what the defendant received)
v So, in this case, NO PROCEDURES WERE REQUIRED BY THAT ACT. The following is what must be given to a person facing deportation under s.53(1)(b) in the similar circumstances:
-Individual must be informed of the case to be met
-Individual must be given opportunity to respond to the case presented by the Minister and challenge the information of the Minister where issues of validity arise by presenting facts
-The Minister must provide written reasons for their decision that must fine that there are no substantive grounds to believe that the individual who is subject to s.53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment.
*NOTE – The procedural protections may not be the ones always required in every s.53(1) challenge since the content of procedural protections vary depending to the facts of the case.
à THE DOF VIA S.7 IS NOT REQUIRED. BUT A DOF IS REQUIRED UNDER THE ACT
Of course, we can’t stop at an outcome that just says “robust or lots of procedural fairness, or not” because that’s not enough!!!
We have to continue to dissect that concept and focus on the SPECIFIC PROCEDURAL ENTITLEMENTS (SPECIFIC CONTENT) (i.e. how much notice; what sort of hearing; how much discretion…).
After we look to the 5 Baker factors, and determine whether a DOF is required, we must then examine the specific content that has arisen as a result of having no DOF.
*NOTE – These considerations are divided into 2 issues
1. We look at the pre-hearing content issues which include
-issues of notice;
-claims to pre-hearing disclosure or discovery or evidence to be relied on; and
-delay in the processing of administrative proceedings
2. A study of the nature of the actual hearing itself:
-should it be oral or written or a mixture of both?
-are the parties entitled to representation by counsel, an agency, or a friend?
-if there is an oral hearing, is there a right to cross-examine the other witness?
-Then we approach the issue of evidence in the administrative process where our main concerns will be the types of evidence that a decision-maker may rely on and the extent of the decision-maker’s obligation to reveal that evidence in a variety of situations.
-Finally we tease out the detail of the duty to provide reasons
(1) Definition of A RIGHT TO BE HEARD:
Audi Alteram = delegates must always give a fair opportunity to those who are parties in the
controversy for correcting or contradicting any relevant statement prejudicial to those parties
For the “right to be heard” to be real
-there is a duty on all delegates who are subject to procedural fairness to give sufficient notice of the decision (must be enough detail about the decision for parties to make proper submissions defend)
-interested parties must have an opportunity to make submissions
Summary of A RIGHT TO BE HEARD: (notes p.51-81)
a) Pre-Hearing Content Issues: (text p286)
Notice – what notice must be given to parties that a change is about to take place and how individuals can take part in the process (written or oral) (notes p.52-56)
· Central Ontario Coalition (1984)
o SPPA s.6(1); s.24(1); s.7(1)
Discovery – what information will be given to the other side. What information that is before the board or tribunal is going to the applicant, is it the full information or just a summary (notes p.56-59)
· Stinchcombe (1991)
· Canadian Pacific Airlines (1993)
o SPPA s.8; s.12(1)
Delay – in the processing of administrative proceedings (notes p.59)
· Kodellas (1989)
· Blencoe
b) Nature of the Actual Hearing: (text p315)
Oral hearings – a right to oral or written hearing or a mixture of both(notes p.59-63)
· Masters (1994)
· Khan (1997)
Open hearings – assuming that there is to be an oral hearing (notes p.63)
o SPPA s.9(1); Charter s.2(b)
The right to counsel – are the parties entitled to representation by counsel, an agent or friend
(notes p.63-68)
· Re Parrish (1993)
· Howard (1985)
· G.(J.) (1999)
o SPPA s.10; s.11(1)
Disclosure – info. shown to both parties (notes p.68-73)
· Kane (1980)
· Charkaoui (2008)
· Gallant (1989)
· Gough (1990)
o SPPA s.5.4(1); Canada Evidence Act s.37(1) (text p.353)
Official notice – external information which a tribunal feels is relevant (notes p.74)
· Township of Innisfil (1981)
o SPPA s.16
Admissibility of evidence – what procedures may and should agencies use for fact finding
(notes p.74-75)
· Bond (1992)
o SPPA s.15(1)
Cross-examination – If there is an oral hearing, is there a right to cross-examine the other witnesses (notes p.75-77)
· Township of Innisfil (1981)
· Re B and Catholic Children’s Aid Society (1987)
o SPPA s.10
c) Post-Hearing Issues: (text p425)
Duty to give reasons – is there a right to written or oral reasons (notes p.77-80)
· Baker (1999)
· Via Rail Canada (2001)
o SPPA s.17(1)
Effect of breach of the duty to give reasons – the decision may be set aside (notes p.77-80)
#7: Content of Procedural Obligation (Unbiased Decision-Maker)
Step 3: Unbiased Decision-Maker
If procedural obligations are triggered, what does the decision-maker have to do? What is the content of these procedural obligations?
àIf the procedural obligation comes from STATUTE, but the “Trigger” is COMMON LAW, CHARTER, or the BILL OF RIGHTS:
-Generally, the content where these sources apply boils down to 2 broad classes of procedural rules:
(1) A Right to be Heard (Audi Altteram); and
(2) A Right to an Unbiased Decision-Maker (Nemo Judex)
We NOW turn to the SECOND class of procedural obligations associated with the Common Law, Charter s.7, and the Bill…the principle that decision-makers should be UNBIASED
(2) Definition of A Right to an Unbiased Decision-Maker (notes p.80-101)
Nemo Judex = 2 components exist: (A) Personal Bias (partial state of mind--individual/impartial);
(B) Institutional/Independence Bias (lack of independent institutional arrangements)
In other words, this rule requires that decision makers are unbiased, impartial, and independent. Decision-makers must possess a REASONABLE APPREHENSION OF BIAS to be disqualified.
(A) PERSONAL BIAS
Standard Test for Bias:
“The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.
That test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he/she think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly.”
Committee for Justice and Liberty v. National Energy Board (1978) SCC
· i.e., this is the test articulated and followed in Baker, where it is decided that bias would be perceived from Officer Lorenz’s comments.
As part of the GENERAL TEST FOR BIAS, there are FOUR main disqualifying conditions that will give rise to a reasonable apprehension of bias (not mutually exclusive). In other words, these are the 4 primary ways in which an authority/decision-maker may be disqualified for having bias:
(1) Antagonism During a Hearing by a decision maker toward a party or his or her counsel or witnesses;
o most common manifestation is aggressive questioning or comments about testimony (i.e. Baker).
(2) An Association Between One of the Parties and a Decision Maker;
(i.e. Marques v Dylex (1977))
(3) An Involvement by a Decision Maker in a Preliminary/Earlier Stage of the Process/Decision;
o usual example is where a decision maker has in some way already heard the matter before the tribunal or been involved in the investigation and decision to proceed with the matter being heard
(i.e. National Energy Board (1978))
(4) Attitudinal Bias – An attitude of a decision maker toward the outcome
*NOTE - (1), (2), and (3) are dealt with together (notes p.82-83).
*NOTE - (4) is a separate (notes p.86-88)
Dealing with Forms of PERSONAL BIAS (deals with (1), (2), and (3)…basically everything until the second component of Nemo Judex -institutional/independent bias)
ü pre-judgment (actual) and pre-judgment (‘by ideology’)
ü personal relationships
ü past involvement
ü pecuniary interests (how direct and immediate is the interest?)
-Before moving on to deal with the problem of (4) Attitudinal bias, we must consider the limits of the “statutory authorization defense” (authorized by statute). We illustrate this to show a link to the issue of attitudinal bias, and to introduce the possibility of constitutional challenges to “statutorily authorized biases”.
Brosseau (1989) – a certain amount of bias may be allowed if permitted by statute
The maxim Nemo Judex, ‘reasonable apprehension of bias’, has exemptions. The main exception is the overlap of functions which occurs that has been authorized by statute. If a certain degree of overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will NOT generally be subject to the doctrine of ‘reasonable apprehension of bias’ per se. … AND … A multifunctional structure does not in itself always raise an apprehension of bias.
Manning (1995) – “corporate taint” = bias is a lack of neutrality by an individual; no authority for the proposition that there could be bias by a corporate taint. *NOTE – this is a doubtful concept
After these 2 cases, the SCC finally recognized that bias could be BOTH individual/personal AND institutional.
2747-3174 Quebec v Regie (1996) – overlapping of functions may be permissible, however, there must be some separation. Cannot act as both a prosecutor AND an adjudicator. HOWEVER, a plurality of functions in a single administrative agency is not necessarily problematic (agreeing with Brosseau)
“Lack of Independence” = whether a well informed person, viewing the matter realistically and practically – having thought the matter through – would have reasonable apprehension of bias in a substantial number of cases”
Indicators of Lack of Independence (the functional problems):
i. Where the decision maker carried out more than one function within a particular case
ii. Where the tribunal’s staff is employed in a way that gives right to bias concerns
iii. Where a party has an institutional role in the proceeding that might be thought to bias the outcome
iv. Where the tribunal might be thought to have a financial interest in a particular outcome
v. Where a tribunal engages in improper internal consultations before the final determination
*NOTE – some cases focus on indicators such as security of tenure, financial security and institutional independence (see notes p.97)
The text is divided into 3 TYPES OF BIAS :
(1) Attitudinal Bias/Non-Pecuniary Bias – predisposition toward an outcome based on several factors, i.e. relationship with parties, preconceived views on issue in case, there can also be institutional or structural factors that give rise to this kind of bias- things about the organization itself, or government that give rise to perception of bias.
(2) Pecuniary/Other Material Interests: If a person has financial interest in outcome (no matter how trivial), automatically disqualified from hearing the case. State of mind of decision maker not relevant
(3) Independence/Institutional Bias
*NOTE – (1) and (2) are part of the FIRST component of Nemo Judex, Personal Bias.
(1) Attitudinal Bias (is also (4) disqualifying factor above)
Pain (1981) – No apprehension of bias where a tenure member of a tenure committee had already made up their mind about an individual since that is a normal reason in the ordinary course of employment. (This case deals with prior involvement (as professors of the student) to the matter)
Large v Stratford (1992) – Just because one has experience with an issue (as advocate), it will NOT necessary disqualify him/her from deciding a case on the same issue
(2) Pecuniary (involving money) and Other Material Interests
**Energy Probe v Canada (1984) – interest must NOT be too remote to be a pecuniary interest. This case revisits whether a material interest is ‘disqualifying’, and if so, what constitutes a DIRECT interest?
Issue: did Mr. Olsen have a pecuniary interest in the outcome of that decision sufficient to constitute pecuniary bias as that term has been defined?
Held: Mr. Olsen’s interest was indirect and uncertain and too remote to constitute either direct pecuniary interest or bias.
Textbook RULE: “only a DIRECT pecuniary bias, no matter how trivial, will constitute bias”
-Before moving into (3), Independence/Institutional Bias, we will take a look at the “variations in standards for bias”, as seen in text.
So, there are 4 cases which demonstrate “Variations in the standards for bias”(what else can constitute bias to result in one’s disqualification?)…PRE-JUDGMENT?
What constitutes disqualifying bias may vary. However, this is particularly so in the area of prior involvement with and attitudes toward the matter to be decided
*Old St. Boniface (1990) – Municipal Councilors are subject to a higher threshold of bias due to the fact that they are elected. This means that there is a HIGHER BIAS THRESHOLD for Municipal Councillors to pass since they develop opinions on matters as they appear before them. There is some degree of pre-judgment inherent in the role of a councilor. But in order for a statement/ PRE-JUDGMENT to constitute as bias, it must be a statement/ PRE-JUDGMENT made as a FINAL OPINION.
“…a municipal councilor is often involved in assisting parties supporting and opposing the development with respect to their presentations. So, a councilor can and does often take a stand rather for or against the development. This degree of pre-judgment would run afoul of the ordinary rule which disqualifies a decision-maker on the basis of a reasonable apprehension of bias. Accordingly, it could NOT have been intended by the Legislature that this rule apply to members of Council with the same force as in the case of other tribunals whose character and functions more closely resemble those of a court”
The Legislature could NOT have intended the same rule for tribunals to also apply to Members of Council.
THEREFORE, the general test (the reasonable apprehension of bias test) will NOT be an appropriate test for a learned judge or a Councilor to apply UNLESS they have some personal interest involved (either pecuniary or by reason of a relationship with the developer). In such circumstances where such an interest IS seen, instead of using the general test, public officials will use:
TEST which applies to all public officials:
Would a reasonably well-informed person consider that the interest might have an influence on the exercise of the official’s public duty?
*Save Richmond Farmland Society (1990) –If the decision-maker is at the Legislative end of the spectrum (rather than at the administrative/judicial end), then a HIGHER THRESHOLD will be used to establish a reasonable apprehension of bias. Such a decision-maker is entitled to bring a “CLOSED MIND” to this decision-making process, provided that the closed mind is the result NOT of corruption, BUT of HONEST OPINIONS strongly held (no PRE-JUDGMENT).
“A member of a municipal council is NOT disqualified by reason of his bias UNLESS he or she has PRE-JUDGED the matter to be decided to the extent that he or she is no longer capable of being persuaded”
The only time Members of Municipal Council may be disqualified is if they have PRE-JUDGED the matter to be decided…by already making their decision before-hand.
THEREFORE, there will be MORE DEFERENCE to elected municipal officials, so long as they have NOT PRE-JUDGED the matter to be decided. They must have a “CLOSED MIND” during decision-making.
*Newfoundland Telephone (1992) – The further the progress of stages (i.e. investigative stage…hearing stage…), the greater the requirement will be for no apprehension of bias. AND the composition of the Boards should reflect society and may contain advocates for issues. AND a Municipal Council is not disqualified by reason
During investigative stage, a wide license must be given to board members to make public comment. As long as those statements do not indicate a mind “so closed” that any submissions would be futile, they should NOT be subject to attack on the basis of bias. Once the matter reaches the hearing stage, a greater degree of discretion is required of a member…
The composition of the Boards can, and often should, reflect all aspects of society. Members may include experts who give advice on the technical nature of the operations to be considered by the board, as well as representatives of government and of the community. There is no reason why advocates for the consumer or ultimate user of the regulated product should not, in appropriate circumstances, be members of boards.
A member of a municipal council is NOT disqualified by reason –adjudicative bodies are expected to comply with the standard that is applicable to the courts: no reasonable apprehension of bias with regard to their decision…Boards with popularly elected members or policy boards, will have standards which are more LENIENT/FLEXIBLE…
THEREFORE,
a) A “closed mind” test is applicable at the investigative stage.
b) Once matters proceed to a hearing, a higher standard must to be applied.
c) Procedural fairness then required the Board members to conduct themselves so that there could be no reasonable apprehension of bias.
d) The application of that test must be flexible (It need not be as strict for this Board dealing with policy matters as it would be for a board acting solely in an adjudicative capacity).
*Pelletier (2008)– where a reasonable apprehension of bias is found (by the Commissioner toward the applicant), its application MUST BE “FLEXIBLE”.
Based on Baker: procedural fairness requires that decisions be made free from a reasonable
apprehension of bias by an impartial decision-maker.
Based on Newfoundland Telephone: the standard of impartiality expected of a decision maker
varies. It depends on the role and the function of the decision-maker involved.
So, the Commissioner’s experience as a judge does NOT necessarily mean we must assess his impartiality by using a strict application of the reasonable apprehension of bias test. It means that we may use a FLEXIBLE application of the reasonable apprehension of bias test
THEREFORE, where a reasonable apprehension of bias standard is appropriate (i.e. once a matter has proceeded to the hearing stage), its application MUST BE MORE “FLEXIBLE” (in order to be able to identify bias)
(B) INSTITUTIONAL/INDEPENDENT BIAS
(3) Institutional/Independence Bias (the SECOND component of Nemo Judex) AND the third type of bias
First and foremost, it must be said that, independence rules do NOT necessarily always flow from instances where procedural entitlements (i.e. notice, right to council, disclosure…) might be owed.
Reason: common law procedural fairness rules CANNOT prevail over statute (it would have to be based on s.7 Charter or Bill of Rights triggers – if they apply)
Valente (1985) - considers meaning of “independent and impartial tribunal” guaranteed by s.11(d)
ISSUE: whether a provincial judge sitting as the Provincial Court in Ontario in December 1982 was an independent tribunal within the meaning of s. 11 (d). The focus in Valente was on the relationship of the judges and the Provincial Court to the executive government of Ontario, through the Ministry of the Attorney General.
HELD: “Although there is obviously a close relationship between independence and impartiality, they
are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial" as Howland C.J.O. noted, connotes absence of bias, actual or perceived. The word "independent" in s. l l(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.”
Principles of Judicial Independence (Valente):
1. Security of Tenure - “The essence of security of tenure for the purposes of s. 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the executive or other appointing authority in a discretionary or arbitrary manner
2. Financial Security – The second essential condition of judicial independence for purposes of s.11(d) is, what may be referred to as financial security. That means security of salary or other remuneration, and, where appropriate, security of pension. The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence the essence
3. Institutional Independence – The third essential condition of judicial independence for purposes of s.11 (d) is the institutional independence of the tribunal with respect to matters of administration beating directly on the exercise of its judicial function...The essentials of institutional independence which may be reasonably perceived as sufficient for purposes of section 11 (d) must, I think, be those referred to by Howland, C.J.O. They may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.
The Court also found that an objection on the grounds of impairment of independence may be directed either at the institution as a whole, or at individuals.
Exactly WHEN it is appropriate to assess institutional independence is considered in Canadian Pacific Ltd. v. Matsqui Indian Band (below)
Alex Couture (1991) - The test for assessing the independence of the judge or tribunal must be the one of reasonable apprehension of bias proposed in National Energy Board”
“The test for institutional impartiality is the same as the test adopted in the Valente case with respect to the issue of judicial independence, that is the apprehension of an informed person, viewing the matter realistically and practically, and having thought the matter through”.
“The fact that a judge is part-time does NOT in or of itself raise a reasonable apprehension of bias. However, the activities in which a judge engages when he is NOT sitting may give rise to such an apprehension”.
*Canadian Pacific v Matsqui (1995) – Valente principles apply to a tribunal adjudicating a case. The level of independence will vary according to the nature of the tribunal and the interests at stake (i.e. property taxes = flexible approach)
“Appeal tribunals lack sufficient independence following Valente. But even a more FLEXIBLE application of Valente leads to the inevitable conclusion that a reasonable and right-minded person, viewing the whole procedure in the assessment by-laws, would have a reasonable apprehension that members of the appeal tribunal are NOT sufficiently independent. “
THEREFORE
Independence test:
“The Valente principles must be considered in light of the nature of the appeal tribunals themselves, the interests at stake, and other indices of independence, in order to determine whether a reasonable and right-minded person, viewing the whole procedure as set out in the assessment by-laws, would have a reasonable apprehension of bias on the basis that the members of the appeal tribunals are NOT independent”.
2747-3174 Quebec v Regie (1996) – Fixed term WAS sufficient to satisfy institutional independence for security of tenure (possession/residence).
#8: Content of Procedural Obligation (Issues Arising from Institutional Decision-Making)
Step 3: Issues Arising from Institutional Decision-Making
Here, we are dealing with elements of BOTH “The Right to be Heard”, and “The Right to an Unbiased Decision-Maker”: INSTITUTIONAL DECISION-MAKING!
Some decisions of administrative agencies are made in a personal way:
An identified official makes a decision and takes responsibility for it
Other decisions are the product of institutions and institutional processes:
These can usefully be described as “INSTITUTIONAL DECISIONS”
The strength of “Institutional Decisions” are:
-The ability to make large volumes of decisions;
-The opportunities to establish internal checks and balances;
-Specialization among staff members;
-A sharing of expertise, opinions, and perspectives
The overall concept behind “Institutional Decisions” is:
Delegates Non Potest Delegare = Sub-Delegation (where an administrative decision-maker is
sub-delegating powers to another actor)
*NOTE – The ISSUE arises when this Sub-Delegation OFFENDS PROCEDURAL RULES in some way
Delegation
Points to the conferring of an authority to do things which otherwise that person would have to do himself
Deciding WITHOUT a Hearing
Only those members of an agency, who hear a particular case, may be the ones who decide it.
The rationale of this requirement is that a person is denied an adequate opportunity to influence the decision if they are unable to directly address those who make or who participate in making the decision (i.e. breach of DOF for a member of a hearing panel who is unable to attend for part of a hearing, but them resumes sitting and participates in making the final decision)
*The decision MUST be made by members who heard ALL the evidence and argument, provided they have a minimum number of members to deliberate.
Delegating the duty to hear – MUST take place as a procedural obligation
Consultations among agency members – to what extend does the DOF bar members of an agency who
heard a case when they were discussing it with other members of the agency AFTER the hearing took place?
*Consolidated-Bathurst (1983) – panel members could consult with the “full board” on matters of POLICY and LAW, but NOT on matters of fact. AND the sub-delegation rule will be breached if a NEW POLICY or argument is proposed at a “full board” meeting and the decision is rendered on the basis of this NEW POLICY or argument without giving the parties an opportunity to respond.
“…The facts set out in the draft are taken as given and do not become the subject of
discussion. No vote is taken at these meetings nor is any other procedure employed to identify a consensus…no minutes are kept of such meetings nor is actual attendance recorded. “
With regards to “full board” meetings and the Audi Alteram Partem rule…the only possible breach of this rule arises where a NEW policy or a NEW argument is proposed at a “full board” meeting and a decision is rendered on the basis of this policy or argument without giving the parties an opportunity to respond”
*Tremblay (1992) – INSTITUTIONAL INDEPENDENCE is BREACHED when there is “COMPULSORY CONSULTATION” and “SYSTEMIC PRESSURE” to conclude a decision.
Compulsory Consultation creates at the very least, an appearance of a lack of independence, if not actual constraint…
Plenary meetings of the Commission are held so as to arrive at a consensus: a vote by a show of hands is generally taken, as well as attendance; minutes are kept which is a breach of independence (or lack of independence).
…The fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers.
AND while secrecy remains the rule at plenary meetings, it may be lifted if/when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.
Consolidated Bathurst
Tremblay
· Meeting initiated at option of panel / DM’s.
· No impediment to decision
· Attendance at meeting was optional
· No minutes of meeting
· No vote at meeting
· Original panel still made decision despite what occurred at meeting.
Meeting designed to discuss issues & policy
THIS IS OK!!!
· President could initiate meeting.
· Decision unlikely to be issued without a meeting if it was a novel / new point of law
· Attendance at meeting was compulsory
· Minutes of meeting taken (undue pressure on decision makers)
· Vote taken at meeting
· Tie vote between panel members broken by President.
Process designed to achieve consensus
THIS IS WRONG!!!
Ellis-Don (2001) – A change between a first draft and the final reasons for judgment does NOT create a presumption of impropriety. So long as the consultations are limited to QUESTIONS OF POLICY AND LAW, the decision makers are free to make up and change their own minds as they see fit.
Agency Counsel
Limitations that the DOF may impose on agencies’ ability to seek the assistance of counsel in the discharge of their adjudicative functions…
At the hearing – it is common for tribunals to have counsel available to advise on the admissibility of
evidence, procedure, etc that arise during the hearing.
-The problem arises: if/when counsel oversteps their role as advisor and assumes functions that are more appropriate for the chair or other members of the tribunal, therefore, giving the impression that counsel is running the hearing.
-This could give rise to the challenge for BIAS on the ground that a reasonable observer might conclude that someone, other than one statutorily authorized to decide, was the decision maker.
The preparation of reasons – the volume and complexity of disciplinary proceedings have grown.
-The problem is: to what extent is the giving of reasons a function that must be performed personally by the statutorily designated decision-makers, rather than institutionally through the use of the full range of agency resources?
- Black –Letter Law = 1) the decision made must be that of the tribunal members themselves;
2) the reasons for the decisions must be in substance to those of the tribunal members, not their clerks or their counsel.
*NOTE – courts have allowed tribunals, such as a Committee, to seek the assistance of counsel or some other staff member for assistance in the preparation of its reasons (see Khan)
Reasons review – the chairs of many agencies take the view that there is a corporate responsibility for
the quality of the agency’s work (including decisions made by its members after a hearing)
-The problem is: when sitting on a hearing panel, members exercise their powers with total independence, like judges, but as members of an agency with a statutory mandate to discharge.
Agency Guidelines
Some administrative agencies make extensive use of “guidelines” on the interpretation of their enabling legislation and the exercise of their statutory discretion. (see text pg.633 for The Guidelines)
*NOTE – the issues here is if these big institutions/boards try to standardize decisions by using these guidelines.
S U B S T A N T I V E R E V I E W
When courts are asked to review questions of LAW, FACT, or MIXED (fact and law), and discretion made by these decision-makers…..
……what approach should the courts bring to the task and what tests should they apply?
Error of Fact = a misapprehension of facts
Error of Law = a misconstrued law
Discretion (mixed) = a wrong choice or outcome
Once the court can identify that one of these substantive errors have taken place, the court must then apply a STANDARD OF REVIEW (SOR) analysis
The current standard of review (SOR) framework is laid out by Dunsmuir :
The SOR is:
(1) The presence and terms of a privative clause or right of appeal in the statute
a. Privative clause is not determinative (i.e. absence of it is not automatically “correctness” standard. Presence of it is not automatically “reasonableness” standard)
b. Strong privative clause weight in favour of GREATER DEFERENCE
(2) The nature of the question that is under review (law, fact, or mixed)
a. Generality of a question is indicative of a more LEGAL, and less factual question
b. FACTUAL questions tend towards GREATER DEFERENCE, and LEGAL questions tend towards LESS DEFERENCE
(3) The expertise of the decision-maker
a. May derive from a specialized knowledge of a topic, or from experience and skill in the determination of a particular issue
b. Relative expertise in tribunals weigh in favour of GREATER DEFERENCE
(4) The statutory purpose and context in which the decision making took place
a. Where there is a ‘polycentric’ purpose (multiple policy issues, interests…), there is GREATER DEFERENCE
Dunsmuir (2008) - the 2 variants of reasonableness review should be collapsed into a single form of “reasonableness” review. The result is a system of judicial review comprising two standards: correctness and reasonableness. AND overruled Knight - Reaffirmed that office holders at pleasure are not entitled to a public law duty of procedural fairness (confirming Ridge v Baldwin).
(A) Reasonableness standard: courts will give due consideration to the determinations of decision makers. DEFERENCE requires respect for the legislative choices to leave some matters in the hands of administrative decision makers.
à Most common: courts tend to agree with/respect original decision
(B) Correctness standard: a reviewing court will NOT SHOW DEFERENCE to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. Thus, the court must ask whether the tribunal’s decision was correct.
Case Analysis: Method for selecting the appropriate SOF:
(A) Reasonableness standard:
(1) The presence or absence of a privative/preclusive clause
o Because a privative clause is evidence of Parliament or a legislature’s intent of DEFERENCE. However, the presence of a privative clause is not determinative.
(2) The nature of the question at issue;
o Only if the question is one of FACT, DISCRETION or POLICY, then DEFERENCE will usually apply automatically.
o Only if the questions are of MIXED law and fact
o (question of law only exists in “correctness”)
(3) The purpose of the tribunal as determined by interpretation of enabling legislation;
o Where a tribunal is interpreting its own statute(s) closely connected to its function, with which it will have particular familiarity reasonableness will attract (thus, DEFERENCE).
(4) Expertise (in the application of a general common or civil law rule) will attract DEFERENCE.
o Adjudication in labour law.
(B) Correctness standard:
· A question of LAW (that is of central importance to the legal system and outside the specialized are of expertise of the administrative decision maker).
· A question of JURISDICTION
o Constitutional questions regarding the division of powers (National Energy Board).
o Courts must substitute their own view of the correct answer where the question at issue is one of general LAW “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (Toronto (City) v C.U.P.E.).
Applying SOF in Dunsmuir:
(1) Privative clause existed (“every order, award, direction, decision ... of an adjudicator is final and shall not be questioned or reviewed in any court”.
(2) The nature of the question at issue is not one that is of central importance to the legal system nor outside the specialized expertise of the adjudicator indicating a reasonableness standard.
(3) Provision for timely and binding settlements of disputes implies a reasonableness standard.
(4) The nature of the regime favours the standard of reasonableness: labour arbitrators.
HELD: the appropriate standard is reasonableness.
THEREFORE HELD: the adjudicator’s interpretation was unreasonable. The reasoning process of the adjudicator was deeply flawed.
(1) What is a PRIVATIVE CLAUSE?
= Statutory provisions whose intended effect is to make the delegate’s decision FINAL and BINDING, and to also PREVENT any review of the delegate’s decision by the courts.
= In other words, this clause is a provision within a statute that tries to remove a court’s ability to review the decisions made by a tribunal or any other administrative agency.
i.e. s.68(24) of Ontario Employment Standards Act states:
“a decisions of a Board under this section is final and binding upon the parties to the decision and such other parties as the Board may specify”
Problem – courts do not accept that privative clauses can remove review for jurisdiction
Jacmain (1978) – “It is hard to believe that a legislature could create a tribunal with a limited jurisdiction, and yet, bestow on such tribunal [by shielding it from judicial review] an unlimited power to determine the extent of its jurisdiction”
Crevier (1981) – “this court has declared unequivocally that a provincially-constituted statutory tribunal
cannot constitutionally be immunized from review of decisions on questions of JURISDICTION”
So, how do courts get around a privative clause?
Dunsmuir – it seems to remain important to closely examine the reasons given by the court to justify overturning a decision where the decision was protected by a “full” privative clause (uses broad language)
Crevier (1981) – Any legislation which has a privative clause purporting to exclude review of jurisdictional matters, is OUTSIDE the jurisdiction of s provincial legislature
-Legislature cannot oust the courts’ power to review a decision of an administrative agency, or its enabling statue on the ground that it is beyond the constitutional capacity of that legislature.
-THUS, legislation that confers power on public authorities are ALWAYS subject to challenge on the basis that there has been a disregard of the division of powers between Parliament and the provincial legislatures provided in s.91 and s.92 of 1968 Act-1982 Act.
me to LawAccess
#2: Sources of Procedural Obligations
Step 1: The Various Sources
What are the procedural obligations that administrative decision-makers must observe when exceeding their powers? Look at:
(a)Terms of the Enabling Statute –Actual Legislation (i.e. Singh v Canada and Immigration Act…)
-Prescribing specific procedures in an administrative board’s enabling statute
-Trigger – in the legislation itself (but see if statue leaves room for common law influence)
(b) Subordinate Legislation: administrative policy/practices – Delegated Legislation to the executive. Tribunals. (i.e. Manitoba’s Labour Relations Act confers on the Labour Relations Board of that province, the power to enact rules of procedure)
-Tribunals have more expertise and are more efficient than the legislatures
-Trigger – within statue (but see if statue leaves room for common law influence)
(c) Policies and Guidelines – Soft Law. (i.e. SSC in Baker relied on ministerial guidelines as a useful indicator of what constitutes a reasonable interpretation of the minister’s power to grant humanitarian and compassionate exemptions to Canada’s immigration law)
-front-line decision-makers will sometimes rely almost exclusively on guidelines to makes decisions and refer to their enabling statute (a) only when these guidelines are not clear
(d) General Procedural Statutes – Ontario’s SPPA; Alberta’s APJA; Quebec’s AJA; B.C’s ATA. (i.e. Ontario’s Human Right’s Code provides that the provisions of the SPPA apply to any proceeding before the Human Rights Tribunal [unless they conflict]).
-Once triggered, these codes prescribe common standards for the decision-makers within their territory. These statues provide standards for varying specificity, including right to give reasons for a decision and/or right to make representations…
-These procedural codes may be modified or limited by a public authority’s enabling statute (a) and delegated legislation (b)
-Trigger – this contains its own “trigger” (but see if it leaves room for common law influence)
(e) Common Law – If a particular procedure is not required by a public authority’s enabling statute (a), valid delegated legislation (b), or a general procedural statute (d), or if the procedure is required only to a limited extent (d), the authority may be obliged to provide an effective party fuller procedural protection under the principles of common law procedural fairness. (i.e. past cases)
-These are judge-made principles, a party affected by a public authority’s decision is entitled to be heard by the authority in an impartial and independent hearing.
-The decision-maker must “hear the other side”, and must not be “a judge in his own case”
-Trigger - 2 “triggers” for this source (Legitimate Expectation; Knight) see below
(f) Charter of Rights and Freedoms – section 7 (details below)
-Trigger – sec.7
(g) Bill of Rights – section 1(a) and section 2(e) (details below)
-Trigger – sec.1(a) and sec. 2(e)
*THUS – look at legislation, delegated legislation, guidelines, and then common law. Remember to think about Charter and/or Bill of Rights as well.
#3: Procedural Obligation Triggers
Step 2: The Triggers (or Threshold)
Since procedural obligations come from a number of different sources, where is a given procedural obligation “triggered”? (In other words, which procedural rule applies where…When will a duty of fairness (DOF) be “triggered”???)
i.e. If a procedural rule is from legislation, the answer to the “trigger” will be within the legislation itself
i.e. If a procedural rule is from a general statute, the answer to the “trigger” is also within that statute
*THUS – read that legislation to see if that statute relates to your decision-maker!
With regards to Common Law…determining whether a DOF applies is more ambiguous…therefore...
Source
Common Law
Trigger #1 for DOF Trigger #2 for DOF
Knight’s Three-Prong Trigger Legitimate Expectation
*where the requirements of these triggers are met, then procedural fairness is owed by the administrative decision-maker
Trigger #1: (history to current)
Nicholson (1979)– the more serious the consequences of the dismissal, the more need for greater fairness. AND The existence of a duty of fairness no longer depends of classifying the power involved as “administrative” or “quasi-judicial” (legislative). This is a less ridged approach to natural justice.
Re Webb (1978) –a PRIVILEGED holder is entitled to a DOF just like a right holder, but to a lesser degree than a right holder. There is a distinction between the HOLDERS of the benefits and the APPLICANTS for the benefits (applicants may not receive the same DOF protection). PRIVILEGE = a) applicant for privilege; b) expectation of privilege; c) forfeiture of privilege.
Hutfield (1986) – modifies Re Webb to even make PRIVILEGE SEEKERS (APPLICANT) have a DOF protection. A minimal DOF may be owed to an APPLICANT for PRIVILEGE if the decision affects the applicant’s reputation.
Re Abel (1981) – if an undecided decision or recommendation virtually affects/influences the final decision, then a DOF applies. The test whether natural justice (whether a DOF) will apply is: a) the degree of proximity between the investigation and the decision; b) the exposure of harm to the person being investigated are matters of paramount concern.
-so, not all recommendatory and investigative functions will attract an obligation to procedural fairness (affirmed in Knight: “a decision of preliminary nature will not in general trigger a duty to act fairly”)
Irvine (1987) – 3 factors to consider if fairness is required: a) character proceeding; b) nature of the report and whether it is made public; c) penalty that will result when report is received
*Knight (1990) – 3 Prong Trigger to determine whether there is a DOF:
a) The nature of the decision to be made by the administrative body;
-a decision of preliminary nature will not trigger a duty to act fairly, but a decision of a more final nature may have the effect to act fairly
· This provides us with a test for where procedural fairness will be found to exist by the courts (“preliminary” decisions)
b) The relationship existing between that body and the individual (employer/employee);
-classifying the nature of the employment (at pleasure or employee) is no longer necessary because administrative body must act fairly either way.
· This confirms that there is a distinction between administrative power and legislative power. AND that there is a relationship that exists between that body and the individual (private voluntary organizations)
àNOTE àDunsmuir (2008) – made this no longer true
c) The effect/impact of that decision on the individual’s rights (effect on the employee);
-there is a right to procedural fairness (DOF) only if the decision is a significant one and has an important impact on the individual
· This defines the meaning of individual “rights”. Fairness exists where rights, interests, property or liberties of the person affected by the delegate’s actions.
In Knight, it was held that the holder of an office “at pleasure” WAS entitled to be given the reasons for his dismissal and an opportunity to be heard before being dismissed. This has been overruled by:
**Dunsmuir (2008) – Where a public office-holder’s employment is governed by an employment contract, then any disputes relating to their dismissal should be resolved according to the express or implied TERMS OF THEIR CONTRACT, and ANY APPLICABLE STATUTES/REGULATIONS, just like any other contractual employee.
Thus, a public authority that dismisses an employee with an employment contract, is NOT subject to an ADDITIONAL public law DOF. Also, the public employee seeking to challenge their dismissal is limited to ordinary contractual remedies. Office holders at pleasure are not entitled to a public law duty of procedural fairness (DOF).
Pg 105 text: “…a public law DOF may still apply in the following 3 circumstances:
(1) Where a public employee is not protected by a contract of employment (judges, ministers, officials of constitutional state roles);
(2) Where an office-holder is expressly subject to summary dismissal;
(3) Where a DOF flows by necessary implication from the statutory power governing the employment relationship, including a statute that provides for notice to employees of a motion to dismiss.”
Trigger #2:
Legitimate Expectation = Promise
Old St, Boniface (1990) – LE is an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omissions where, based on the conduct of the public official, a party has been led to believe that their rights would not be affected without consultation.
Reference re Canada Assistance Plan (1991) – no procedural or substantial LE applied to Parliament implementing legislation. The Government should NOT be bound. Provinces should NOT expect a LE from the Government. (would paralyze the sovereignty of Parliament itself)
Furey (1991) – LE will apply to an administrative decision affecting procedure. LE creates PROCEDURAL rights, NOT substantive rights.
LE = those who deal with government bodies and agencies who hold power for the public good should be able to rely on representations made to them. The court will intervene by JR where a public authority attempts to reside from a representation made by them which caused a detriment to someone who has relied on that representation.
LE = there MUST BE a clear and unequivocal representation by the government authority/agency.
Mount Sinai Hospital (2001)–the test below ONLY APPLYING TO PRIVATE LAW…The party relying to the doctrine [of promissory estoppel] must establish that the other party has: a) by words of conduct, made a promise or assurance; b) which was intended to affect their legal relationship and to be acted on; c) the reliance on the representation caused him to; d) act on, or in some way, change his position
However, we are talking about PUBLIC LAW estoppel. Public law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be stopped. THE LEGISLATION IS PARAMOUNT.
“I do not think a court should estop the Minister from doing what he considers to be his duty"
Therefore…
LE = a promise or representation from a delegate, to proceed in a certain fashion, possibly resulting in a detriment when the promise is broken to a person who relied on the promise
LE = does NOT apply to a Legislative decision (only administrative),and does NOT apply to promises that conflict with statutory duties.
#4: Procedural Obligation Triggers
Step 3: Legislative Decisions and Emergencies
Common law procedural fairness rules (DOF) may fail to be “triggered” where there is a decision said to be of a “legislative” nature, or where there are emergencies.
“Legislative”:
Nicholson (1979)– the more serious the consequences of the dismissal, the more need for greater fairness. AND The existence of a duty of fairness no longer depends of classifying the power involved as “administrative” or “quasi-judicial” (legislative). (This is a less ridged approach to natural justice.)
*Martineau (1980) – distinguishes between judicial (legislative) and administrative functions.
A Legislative Act = the creation and promulgation (spread) of a general rule of conduct without reference to particular cases
An Administrative Act = cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practices
“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.”
*Inuit Tapirisat of Canada (1980) – the rules of natural justice are not applicable to Cabinet ministers (Legislative) or policy decisions since greater deference is given to Cabinet. Only where the executive branch has been assigned a function that has already performed in the past by the Legislature, AND if the case is NOT directed to an individual concern (but a group one), will it then be dealt with differently from that of Nicholson.
So - Parliament does NOT want to restrict Cabinet. Parliament intends Cabinet to act differently from that of an administrative board. Thus, there are no standards or guidelines imposed or implied for on Cabinet. This provides the Government with a quick and easy way to respond to changing public policies.
We know it is a Legislative Decision if:
-It is a function performed in the past by government and legislature itself
-It is NOT of interest specifically to the petitioner, but affects a broad range of people
*Homex Realty (1980) – The municipality made a policy decision that had an immediate and specific target. IF a decision affects a PRIVATE individual in particular, it will NOT be considered Legislative and the DOF will apply. If the decision affects many people, then the DOF would be less likely to be required since it has the potential of applying to a large amount of individuals.
“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual NO procedural protection…On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards, particularly when personal or property rights are targeted, directly, adversely and specifically”
Legislative Judicial (Administrative)
Broad range of interest Individual Rights at stake
“Polycentric” (Affects many people)
NO DUTY OF FAIRNESS FULL DUTY OF FAIRNESS
If Administrative (judicial) à single individual à DOF applies
If Legislative à group of people à NO DOF applies and NO protection
Canadian Association of Regulated Importers (1993) – the rules of natural justice are not applicable to legislative or policy decisions. Minister could consult to be considerate, but has no obligation to.
Canadian Shipowners Association (1995) – the more personal the issue, the more likely Cabinet’s power of review is to lose its legislative nature and the more the principle of fairness mentioned in Nicholson becomes applicable.
Vancouver Island – defines “Legislative” as: “the decision must be discretionary, usually, but not always, general in its application, based on the exercise of judgments after assessing factors of general policy, of public interest and public convenience, morality, politics, economics, international obligations, national defense and security, social, scientific or technical concerns, that is, issues of policy which lie outside the ambit of typical concerns or methods of the courts”.
Therefore…
“Legislative” Decisions = Broad, Policy-based Power
-usually discretionary, general in application, based on exercise of judgments considering general policy
-Where the impact of the decision being made is diffuse, affecting a BROAD spectrum of the public in a generally undifferentiated manner, claims to participatory rights will be hard to justify (unless the legislation contains some indication of public participation of obligations of consultation)
“Legislative” Decisions = Rule-Making
-Homex – by-law made with specific target in mind means it is not a Legislative decision,
therefore procedural protections were given.
“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual NO procedural protection…On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards, particularly when personal or property rights are targeted, directly, adversely and specifically. …It seems to me that a similar analysis should be employed…it is not particularly important whether the function of the municipality be classified as “legislative” or “quasi-judicial”. Such an approach would only return us to the conundrums of the earlier era. One must look to the nature of the function and to the facts of each case…”
NOTE:
“Legislative nature” v. “Legislative decision”
àA decision of “legislative” nature = NO procedural fairness given where an administrative decision-maker is introducing a form of delegated legislation (i.e. a regulation) AND when this occurs, the general rule is that it is subject to exceptions (Nicholson; Canadian Shipowners Association)
àA “legislative decision” = a decision that is sufficiently general, and not particular to or focused on a reasonably narrow subset of persons. A function performed in the past by government and legislature itself. It is NOT of interest specifically to the petitioner, but affects a broad range of people
Emergencies:
*Randolph (1966) – an interim order withdrawing the provision of mail services to an individual could be made WITHOUT a hearing when there is a statutory basis for making that decision based on the belief that the mails were being used for criminal purposes.
Cardinal (1985) – “because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision. …It is likely that the court will pay considerable deference to the relevant authority’s judgment as to the urgency of the situation”
#5: Procedural Obligation Triggers (Charter & Bill of Rights)
Step 3: Charter & Bill of Rights
“Triggers” for the common law have been established above. But the “Triggers” within other procedural obligations contained Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights are also difficult to identify.
Bill of Rights (only applicable to Federal Law)
Sec.1: 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;
Who can rely on this section: “Individuals”
Triggers: Deprivation of right to life, liberty, security of the person and enjoyment of property
Procedural Guarantees: “Due process of law”
Sec. 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;
Who can rely on this section: “Persons”
Triggers: When rights and obligations are being determined
Procedural Guarantees: Fair hearing in accordance with the principles of fundamental justice
*Authorson v Canada (2003) – NO procedural rights (specifically notice and hearing) are guaranteed by s.2(e) of the Bill of Rights regarding the passage of an Act of Parliament. AND s.1(e) of the Bill does NOT guarantee any substantive right’s to property (money).
Although this decision affected a specific GROUP of veterans, it was considered a “legislative decision” and so, NO DOF is owed (see Wells and Canadian Assistance Plan)
Wells – “Legislative decision making is not subject to any known duty of fairness. Legislatures are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject only to review by the electorate.”
Reference re Canada Assistance Plan – “the rules governing procedural fairness do not apply to a body exercising purely legislative functions”
*No procedural protections in s.1(a) and s.2(e) of Bill could apply to Legislative proceedings!
*Nor are they subject to a “Trigger”/Threshold similar to that established for common law procedural fairness!
Singh (1985) – per Beetz J on s.2(e): “the most important factors in determine the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned”
*Initially, the terms “right and obligations” in s.2(e) was narrowly interpreted by the courts and restricted to the taking away of “strict, legal rights,”
…all of that changed with the resurrection of the Bill of Rights in Singh.
Canada v Central Cartage – “The fair hearing guarantee in s.2(e)is not a frozen concept that remains static…in other words, the guarantee of a fair hearing in s.2(e) should be given a meaning that recognizes not only the interpretation and evolution of the term over time, but also the particular circumstances involved”
Charter of Rights
Sec. 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.
Who can rely on this section: “Everyone” (natural persons…not corporations)
Triggers: derivation of life, liberty and security of the person
Fundamental Justice: it means procedural fairness or natural justice (but precise content will vary depending on the circumstances). This provision imposes the requirement to observe “fundamental justice” on at least some administrative decision-makers (the ones making the decisions that go to life, liberty or security of the person)
Singh (1985) – s.7 applies to “everyone” in Canada (including refugees), otherwise the denial of such a right must amount to a “deprivation of security of the person”. AND s.7 does NOT always require an oral hearing.
“I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions…I am prepared to accept that written submissions may be an adequate substitute for an oral hearing in appropriate circumstances”
Chiarelli (1992) – balance of interest under s.7. an individual has an interest in a fair procedure, however, the state also has an interest in conducting national security and criminal intelligence investigations and in protecting police sources.
Charkaoui (2007) –
Wilson (1988) – Liberty, in s.7, is NOT confined to mere freedom of bodily harm. S.7 does NOT protect property or pure economic rights, however, it will cover livelihood which may have an incidental economic component.
*Blencoe (2000) – “security of the person protects against only serious psychological incursions resulting from state interference with an individual interest of fundamental importance. And it is only in exceptional cases where the state interferes in profoundly intimate and personal choices of an individual that state-caused delay in human rights proceedings could trigger the s.7 security of the person interest”
Can fundamental justice control the process by which Parliament passes laws? NO!
Wells – “Legislative decision making is NOT subject to any known DOF. Legislatures are subject to
constitutional requirements for valid law-making, but within their constitutional boundaries, they can so as they see fit. The wisdom and value of legislative decisions are subject only to review buy the electorate. The judgment of Reference re Canada Assistance Plan…was conclusive on this point in stating that… “the rules governing procedural fairness do not apply to a body exercising purely legislative functions.””
Aurthorson – “Long-standing parliamentary tradition makes it clear that the only procedure due to any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. Once that process is completed, legislations within Parliament’s competence is unassailable”
*NOTE – The reason it is difficult to identify the “Triggers” within Common Law, the Charter, or the Bill of Rights, is because the precise content of procedural rules coming from these sources varies from case to case according to the circumstances.
#6: Content of Procedural Obligation (Right to be Heard)
Step 3: Right to be Heard
Now that we have identified that there are various Sources, and identified that there are various “Triggers” which will trigger those Sources to determine whether or not Procedural Fairness (DOF) has occurred, we must now determine what occurs after a procedural obligation has been Triggered.
If procedural obligations are triggered, what does the decision-maker have to do? What is the content of these procedural obligations?
àIf the procedural obligation comes from STATUTE:
-The enabling act or one of the special legislated procedural codes (enabling/actual statute; subordinate legislation; policies/guidelines; general procedural statues), will determine the content.
-Whatever the statute says is the content, will be the content!”
-NOTE: although there may be occasions in which you will have to determine whether the statute is a “complete code” or leaves room for common law supplementation.
àIf the procedural obligation comes from STATUTE, but the “Trigger” is COMMON LAW, CHARTER (s.7), or the BILL OF RIGHTS:
-Generally, the content where these sources apply boils down to 2 broad classes of procedural rules:
(1) A Right to be Heard (Audi Altteram); and
(2) A Right to an Unbiased Decision-Maker (Nemo Judex)
(1)Right to be heard
With the Right to be Heard content, we must first start with the 5 Baker factors which give us a non-exclusive list of considerations that suggests whether or not the content will be robust (lost of procedural fairness, DOF).
SCC sought, for the first time, to lay out a methodology to determine the appropriate content of procedural fairness in:
**Baker (1999) – 5 factor test (notes pg.46. pg.256 text)
(i) The Nature of the Decision and the Process followed in Making it
(ii) The Nature of the Statutory Scheme and the Terms of the Statute Pursuant to which the Decision-Maker Operates
(iii) The Importance of the Decision to the Affected Party
(iv) Any Legitimate Expectations of the Person Challenging the Decision
(v) The Choices of Procedure Made by the Agency Itself (taking into account the decisions made by the tribunal)
*NOTE – Baker tells us that Legitimate Expectation never generates a claim to a substantive outcome, only to hearing entitlements which exists within procedural rights. ALSO, it will create procedural rights when certain outcomes are legitimately expected.
For example: If the “Trigger” is Legitimate Expectations, the content of the procedural
obligation is generally what was promised in the procedural promise that gave rise to the Legitimate Expectation in the first place.
Full Example:
Suresh (2007) – following 5 Baker factors to conclude that s.7 of Charter required procedural protections (must have the opportunity to know, meet, and make submissions to argue the case against him; to be heard), but NOT to the extent of a FULL ORAL HEARING, whether or not torture upon deportation was possible.
-Trigger in this case = s.7 Charter
-So the content of procedural fairness (DOF) must include = A Right to be Heard
-Sec.7 protects substantive as well as procedural rights, therefore, it is appropriate to look to the Baker factors to determine whether or not the common law DOF has been met….AND….decide whether or not the safeguards provided have satisfied the demands of s.7.
àTHEREFORE, HAS THE CONTENT OF DOF BEEN MET?
àGO THROUGH 5 BAKER FACTORS
(1) Nature of the Decision (administrative or judicial type) – the nature of the decision doesn’t indicate a weak or a strong procedural safeguard
(2) Nature of the Statutory Scheme – suggests that there is a need for strong procedural safeguards since there is no provision within the statute for a hearing, nor any requirement of written or oral reasons, no right of appeal…..est.
(3) Importance of the Decision to the Individuals – this factor is in favour of heightened procedural protections under the statute b/c a person subject to this section in the statute at hand, may be subjected to torture…
(4) Legitimate Expectation – this is not taken into account. Baker says that this is not always a relevant factor
(5) Choice of Procedures – the minister is allowed a lot of discretion in this case, so therefore, a lot of deference must be provided. The legislature knew that these types of decisions would be very serious and as such, left it to the minister to determine.
HELD: based on the 5 Baker factors, the court was of the opinion that the procedural protections required by s.7 in this case, DO NOT extend to a level of requiring the Minister to conduct a full oral hearing or a complete judicial process…but they DO require more than the procedure required by the Act under s.53(1)(b) (more than what the defendant received)
v So, in this case, NO PROCEDURES WERE REQUIRED BY THAT ACT. The following is what must be given to a person facing deportation under s.53(1)(b) in the similar circumstances:
-Individual must be informed of the case to be met
-Individual must be given opportunity to respond to the case presented by the Minister and challenge the information of the Minister where issues of validity arise by presenting facts
-The Minister must provide written reasons for their decision that must fine that there are no substantive grounds to believe that the individual who is subject to s.53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment.
*NOTE – The procedural protections may not be the ones always required in every s.53(1) challenge since the content of procedural protections vary depending to the facts of the case.
à THE DOF VIA S.7 IS NOT REQUIRED. BUT A DOF IS REQUIRED UNDER THE ACT
Of course, we can’t stop at an outcome that just says “robust or lots of procedural fairness, or not” because that’s not enough!!!
We have to continue to dissect that concept and focus on the SPECIFIC PROCEDURAL ENTITLEMENTS (SPECIFIC CONTENT) (i.e. how much notice; what sort of hearing; how much discretion…).
After we look to the 5 Baker factors, and determine whether a DOF is required, we must then examine the specific content that has arisen as a result of having no DOF.
*NOTE – These considerations are divided into 2 issues
1. We look at the pre-hearing content issues which include
-issues of notice;
-claims to pre-hearing disclosure or discovery or evidence to be relied on; and
-delay in the processing of administrative proceedings
2. A study of the nature of the actual hearing itself:
-should it be oral or written or a mixture of both?
-are the parties entitled to representation by counsel, an agency, or a friend?
-if there is an oral hearing, is there a right to cross-examine the other witness?
-Then we approach the issue of evidence in the administrative process where our main concerns will be the types of evidence that a decision-maker may rely on and the extent of the decision-maker’s obligation to reveal that evidence in a variety of situations.
-Finally we tease out the detail of the duty to provide reasons
(1) Definition of A RIGHT TO BE HEARD:
Audi Alteram = delegates must always give a fair opportunity to those who are parties in the
controversy for correcting or contradicting any relevant statement prejudicial to those parties
For the “right to be heard” to be real
-there is a duty on all delegates who are subject to procedural fairness to give sufficient notice of the decision (must be enough detail about the decision for parties to make proper submissions defend)
-interested parties must have an opportunity to make submissions
Summary of A RIGHT TO BE HEARD: (notes p.51-81)
a) Pre-Hearing Content Issues: (text p286)
Notice – what notice must be given to parties that a change is about to take place and how individuals can take part in the process (written or oral) (notes p.52-56)
· Central Ontario Coalition (1984)
o SPPA s.6(1); s.24(1); s.7(1)
Discovery – what information will be given to the other side. What information that is before the board or tribunal is going to the applicant, is it the full information or just a summary (notes p.56-59)
· Stinchcombe (1991)
· Canadian Pacific Airlines (1993)
o SPPA s.8; s.12(1)
Delay – in the processing of administrative proceedings (notes p.59)
· Kodellas (1989)
· Blencoe
b) Nature of the Actual Hearing: (text p315)
Oral hearings – a right to oral or written hearing or a mixture of both(notes p.59-63)
· Masters (1994)
· Khan (1997)
Open hearings – assuming that there is to be an oral hearing (notes p.63)
o SPPA s.9(1); Charter s.2(b)
The right to counsel – are the parties entitled to representation by counsel, an agent or friend
(notes p.63-68)
· Re Parrish (1993)
· Howard (1985)
· G.(J.) (1999)
o SPPA s.10; s.11(1)
Disclosure – info. shown to both parties (notes p.68-73)
· Kane (1980)
· Charkaoui (2008)
· Gallant (1989)
· Gough (1990)
o SPPA s.5.4(1); Canada Evidence Act s.37(1) (text p.353)
Official notice – external information which a tribunal feels is relevant (notes p.74)
· Township of Innisfil (1981)
o SPPA s.16
Admissibility of evidence – what procedures may and should agencies use for fact finding
(notes p.74-75)
· Bond (1992)
o SPPA s.15(1)
Cross-examination – If there is an oral hearing, is there a right to cross-examine the other witnesses (notes p.75-77)
· Township of Innisfil (1981)
· Re B and Catholic Children’s Aid Society (1987)
o SPPA s.10
c) Post-Hearing Issues: (text p425)
Duty to give reasons – is there a right to written or oral reasons (notes p.77-80)
· Baker (1999)
· Via Rail Canada (2001)
o SPPA s.17(1)
Effect of breach of the duty to give reasons – the decision may be set aside (notes p.77-80)
#7: Content of Procedural Obligation (Unbiased Decision-Maker)
Step 3: Unbiased Decision-Maker
If procedural obligations are triggered, what does the decision-maker have to do? What is the content of these procedural obligations?
àIf the procedural obligation comes from STATUTE, but the “Trigger” is COMMON LAW, CHARTER, or the BILL OF RIGHTS:
-Generally, the content where these sources apply boils down to 2 broad classes of procedural rules:
(1) A Right to be Heard (Audi Altteram); and
(2) A Right to an Unbiased Decision-Maker (Nemo Judex)
We NOW turn to the SECOND class of procedural obligations associated with the Common Law, Charter s.7, and the Bill…the principle that decision-makers should be UNBIASED
(2) Definition of A Right to an Unbiased Decision-Maker (notes p.80-101)
Nemo Judex = 2 components exist: (A) Personal Bias (partial state of mind--individual/impartial);
(B) Institutional/Independence Bias (lack of independent institutional arrangements)
In other words, this rule requires that decision makers are unbiased, impartial, and independent. Decision-makers must possess a REASONABLE APPREHENSION OF BIAS to be disqualified.
(A) PERSONAL BIAS
Standard Test for Bias:
“The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.
That test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he/she think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly.”
Committee for Justice and Liberty v. National Energy Board (1978) SCC
· i.e., this is the test articulated and followed in Baker, where it is decided that bias would be perceived from Officer Lorenz’s comments.
As part of the GENERAL TEST FOR BIAS, there are FOUR main disqualifying conditions that will give rise to a reasonable apprehension of bias (not mutually exclusive). In other words, these are the 4 primary ways in which an authority/decision-maker may be disqualified for having bias:
(1) Antagonism During a Hearing by a decision maker toward a party or his or her counsel or witnesses;
o most common manifestation is aggressive questioning or comments about testimony (i.e. Baker).
(2) An Association Between One of the Parties and a Decision Maker;
(i.e. Marques v Dylex (1977))
(3) An Involvement by a Decision Maker in a Preliminary/Earlier Stage of the Process/Decision;
o usual example is where a decision maker has in some way already heard the matter before the tribunal or been involved in the investigation and decision to proceed with the matter being heard
(i.e. National Energy Board (1978))
(4) Attitudinal Bias – An attitude of a decision maker toward the outcome
*NOTE - (1), (2), and (3) are dealt with together (notes p.82-83).
*NOTE - (4) is a separate (notes p.86-88)
Dealing with Forms of PERSONAL BIAS (deals with (1), (2), and (3)…basically everything until the second component of Nemo Judex -institutional/independent bias)
ü pre-judgment (actual) and pre-judgment (‘by ideology’)
ü personal relationships
ü past involvement
ü pecuniary interests (how direct and immediate is the interest?)
-Before moving on to deal with the problem of (4) Attitudinal bias, we must consider the limits of the “statutory authorization defense” (authorized by statute). We illustrate this to show a link to the issue of attitudinal bias, and to introduce the possibility of constitutional challenges to “statutorily authorized biases”.
Brosseau (1989) – a certain amount of bias may be allowed if permitted by statute
The maxim Nemo Judex, ‘reasonable apprehension of bias’, has exemptions. The main exception is the overlap of functions which occurs that has been authorized by statute. If a certain degree of overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will NOT generally be subject to the doctrine of ‘reasonable apprehension of bias’ per se. … AND … A multifunctional structure does not in itself always raise an apprehension of bias.
Manning (1995) – “corporate taint” = bias is a lack of neutrality by an individual; no authority for the proposition that there could be bias by a corporate taint. *NOTE – this is a doubtful concept
After these 2 cases, the SCC finally recognized that bias could be BOTH individual/personal AND institutional.
2747-3174 Quebec v Regie (1996) – overlapping of functions may be permissible, however, there must be some separation. Cannot act as both a prosecutor AND an adjudicator. HOWEVER, a plurality of functions in a single administrative agency is not necessarily problematic (agreeing with Brosseau)
“Lack of Independence” = whether a well informed person, viewing the matter realistically and practically – having thought the matter through – would have reasonable apprehension of bias in a substantial number of cases”
Indicators of Lack of Independence (the functional problems):
i. Where the decision maker carried out more than one function within a particular case
ii. Where the tribunal’s staff is employed in a way that gives right to bias concerns
iii. Where a party has an institutional role in the proceeding that might be thought to bias the outcome
iv. Where the tribunal might be thought to have a financial interest in a particular outcome
v. Where a tribunal engages in improper internal consultations before the final determination
*NOTE – some cases focus on indicators such as security of tenure, financial security and institutional independence (see notes p.97)
The text is divided into 3 TYPES OF BIAS :
(1) Attitudinal Bias/Non-Pecuniary Bias – predisposition toward an outcome based on several factors, i.e. relationship with parties, preconceived views on issue in case, there can also be institutional or structural factors that give rise to this kind of bias- things about the organization itself, or government that give rise to perception of bias.
(2) Pecuniary/Other Material Interests: If a person has financial interest in outcome (no matter how trivial), automatically disqualified from hearing the case. State of mind of decision maker not relevant
(3) Independence/Institutional Bias
*NOTE – (1) and (2) are part of the FIRST component of Nemo Judex, Personal Bias.
(1) Attitudinal Bias (is also (4) disqualifying factor above)
Pain (1981) – No apprehension of bias where a tenure member of a tenure committee had already made up their mind about an individual since that is a normal reason in the ordinary course of employment. (This case deals with prior involvement (as professors of the student) to the matter)
Large v Stratford (1992) – Just because one has experience with an issue (as advocate), it will NOT necessary disqualify him/her from deciding a case on the same issue
(2) Pecuniary (involving money) and Other Material Interests
**Energy Probe v Canada (1984) – interest must NOT be too remote to be a pecuniary interest. This case revisits whether a material interest is ‘disqualifying’, and if so, what constitutes a DIRECT interest?
Issue: did Mr. Olsen have a pecuniary interest in the outcome of that decision sufficient to constitute pecuniary bias as that term has been defined?
Held: Mr. Olsen’s interest was indirect and uncertain and too remote to constitute either direct pecuniary interest or bias.
Textbook RULE: “only a DIRECT pecuniary bias, no matter how trivial, will constitute bias”
-Before moving into (3), Independence/Institutional Bias, we will take a look at the “variations in standards for bias”, as seen in text.
So, there are 4 cases which demonstrate “Variations in the standards for bias”(what else can constitute bias to result in one’s disqualification?)…PRE-JUDGMENT?
What constitutes disqualifying bias may vary. However, this is particularly so in the area of prior involvement with and attitudes toward the matter to be decided
*Old St. Boniface (1990) – Municipal Councilors are subject to a higher threshold of bias due to the fact that they are elected. This means that there is a HIGHER BIAS THRESHOLD for Municipal Councillors to pass since they develop opinions on matters as they appear before them. There is some degree of pre-judgment inherent in the role of a councilor. But in order for a statement/ PRE-JUDGMENT to constitute as bias, it must be a statement/ PRE-JUDGMENT made as a FINAL OPINION.
“…a municipal councilor is often involved in assisting parties supporting and opposing the development with respect to their presentations. So, a councilor can and does often take a stand rather for or against the development. This degree of pre-judgment would run afoul of the ordinary rule which disqualifies a decision-maker on the basis of a reasonable apprehension of bias. Accordingly, it could NOT have been intended by the Legislature that this rule apply to members of Council with the same force as in the case of other tribunals whose character and functions more closely resemble those of a court”
The Legislature could NOT have intended the same rule for tribunals to also apply to Members of Council.
THEREFORE, the general test (the reasonable apprehension of bias test) will NOT be an appropriate test for a learned judge or a Councilor to apply UNLESS they have some personal interest involved (either pecuniary or by reason of a relationship with the developer). In such circumstances where such an interest IS seen, instead of using the general test, public officials will use:
TEST which applies to all public officials:
Would a reasonably well-informed person consider that the interest might have an influence on the exercise of the official’s public duty?
*Save Richmond Farmland Society (1990) –If the decision-maker is at the Legislative end of the spectrum (rather than at the administrative/judicial end), then a HIGHER THRESHOLD will be used to establish a reasonable apprehension of bias. Such a decision-maker is entitled to bring a “CLOSED MIND” to this decision-making process, provided that the closed mind is the result NOT of corruption, BUT of HONEST OPINIONS strongly held (no PRE-JUDGMENT).
“A member of a municipal council is NOT disqualified by reason of his bias UNLESS he or she has PRE-JUDGED the matter to be decided to the extent that he or she is no longer capable of being persuaded”
The only time Members of Municipal Council may be disqualified is if they have PRE-JUDGED the matter to be decided…by already making their decision before-hand.
THEREFORE, there will be MORE DEFERENCE to elected municipal officials, so long as they have NOT PRE-JUDGED the matter to be decided. They must have a “CLOSED MIND” during decision-making.
*Newfoundland Telephone (1992) – The further the progress of stages (i.e. investigative stage…hearing stage…), the greater the requirement will be for no apprehension of bias. AND the composition of the Boards should reflect society and may contain advocates for issues. AND a Municipal Council is not disqualified by reason
During investigative stage, a wide license must be given to board members to make public comment. As long as those statements do not indicate a mind “so closed” that any submissions would be futile, they should NOT be subject to attack on the basis of bias. Once the matter reaches the hearing stage, a greater degree of discretion is required of a member…
The composition of the Boards can, and often should, reflect all aspects of society. Members may include experts who give advice on the technical nature of the operations to be considered by the board, as well as representatives of government and of the community. There is no reason why advocates for the consumer or ultimate user of the regulated product should not, in appropriate circumstances, be members of boards.
A member of a municipal council is NOT disqualified by reason –adjudicative bodies are expected to comply with the standard that is applicable to the courts: no reasonable apprehension of bias with regard to their decision…Boards with popularly elected members or policy boards, will have standards which are more LENIENT/FLEXIBLE…
THEREFORE,
a) A “closed mind” test is applicable at the investigative stage.
b) Once matters proceed to a hearing, a higher standard must to be applied.
c) Procedural fairness then required the Board members to conduct themselves so that there could be no reasonable apprehension of bias.
d) The application of that test must be flexible (It need not be as strict for this Board dealing with policy matters as it would be for a board acting solely in an adjudicative capacity).
*Pelletier (2008)– where a reasonable apprehension of bias is found (by the Commissioner toward the applicant), its application MUST BE “FLEXIBLE”.
Based on Baker: procedural fairness requires that decisions be made free from a reasonable
apprehension of bias by an impartial decision-maker.
Based on Newfoundland Telephone: the standard of impartiality expected of a decision maker
varies. It depends on the role and the function of the decision-maker involved.
So, the Commissioner’s experience as a judge does NOT necessarily mean we must assess his impartiality by using a strict application of the reasonable apprehension of bias test. It means that we may use a FLEXIBLE application of the reasonable apprehension of bias test
THEREFORE, where a reasonable apprehension of bias standard is appropriate (i.e. once a matter has proceeded to the hearing stage), its application MUST BE MORE “FLEXIBLE” (in order to be able to identify bias)
(B) INSTITUTIONAL/INDEPENDENT BIAS
(3) Institutional/Independence Bias (the SECOND component of Nemo Judex) AND the third type of bias
First and foremost, it must be said that, independence rules do NOT necessarily always flow from instances where procedural entitlements (i.e. notice, right to council, disclosure…) might be owed.
Reason: common law procedural fairness rules CANNOT prevail over statute (it would have to be based on s.7 Charter or Bill of Rights triggers – if they apply)
Valente (1985) - considers meaning of “independent and impartial tribunal” guaranteed by s.11(d)
ISSUE: whether a provincial judge sitting as the Provincial Court in Ontario in December 1982 was an independent tribunal within the meaning of s. 11 (d). The focus in Valente was on the relationship of the judges and the Provincial Court to the executive government of Ontario, through the Ministry of the Attorney General.
HELD: “Although there is obviously a close relationship between independence and impartiality, they
are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial" as Howland C.J.O. noted, connotes absence of bias, actual or perceived. The word "independent" in s. l l(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.”
Principles of Judicial Independence (Valente):
1. Security of Tenure - “The essence of security of tenure for the purposes of s. 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the executive or other appointing authority in a discretionary or arbitrary manner
2. Financial Security – The second essential condition of judicial independence for purposes of s.11(d) is, what may be referred to as financial security. That means security of salary or other remuneration, and, where appropriate, security of pension. The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence the essence
3. Institutional Independence – The third essential condition of judicial independence for purposes of s.11 (d) is the institutional independence of the tribunal with respect to matters of administration beating directly on the exercise of its judicial function...The essentials of institutional independence which may be reasonably perceived as sufficient for purposes of section 11 (d) must, I think, be those referred to by Howland, C.J.O. They may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.
The Court also found that an objection on the grounds of impairment of independence may be directed either at the institution as a whole, or at individuals.
Exactly WHEN it is appropriate to assess institutional independence is considered in Canadian Pacific Ltd. v. Matsqui Indian Band (below)
Alex Couture (1991) - The test for assessing the independence of the judge or tribunal must be the one of reasonable apprehension of bias proposed in National Energy Board”
“The test for institutional impartiality is the same as the test adopted in the Valente case with respect to the issue of judicial independence, that is the apprehension of an informed person, viewing the matter realistically and practically, and having thought the matter through”.
“The fact that a judge is part-time does NOT in or of itself raise a reasonable apprehension of bias. However, the activities in which a judge engages when he is NOT sitting may give rise to such an apprehension”.
*Canadian Pacific v Matsqui (1995) – Valente principles apply to a tribunal adjudicating a case. The level of independence will vary according to the nature of the tribunal and the interests at stake (i.e. property taxes = flexible approach)
“Appeal tribunals lack sufficient independence following Valente. But even a more FLEXIBLE application of Valente leads to the inevitable conclusion that a reasonable and right-minded person, viewing the whole procedure in the assessment by-laws, would have a reasonable apprehension that members of the appeal tribunal are NOT sufficiently independent. “
THEREFORE
Independence test:
“The Valente principles must be considered in light of the nature of the appeal tribunals themselves, the interests at stake, and other indices of independence, in order to determine whether a reasonable and right-minded person, viewing the whole procedure as set out in the assessment by-laws, would have a reasonable apprehension of bias on the basis that the members of the appeal tribunals are NOT independent”.
2747-3174 Quebec v Regie (1996) – Fixed term WAS sufficient to satisfy institutional independence for security of tenure (possession/residence).
#8: Content of Procedural Obligation (Issues Arising from Institutional Decision-Making)
Step 3: Issues Arising from Institutional Decision-Making
Here, we are dealing with elements of BOTH “The Right to be Heard”, and “The Right to an Unbiased Decision-Maker”: INSTITUTIONAL DECISION-MAKING!
Some decisions of administrative agencies are made in a personal way:
An identified official makes a decision and takes responsibility for it
Other decisions are the product of institutions and institutional processes:
These can usefully be described as “INSTITUTIONAL DECISIONS”
The strength of “Institutional Decisions” are:
-The ability to make large volumes of decisions;
-The opportunities to establish internal checks and balances;
-Specialization among staff members;
-A sharing of expertise, opinions, and perspectives
The overall concept behind “Institutional Decisions” is:
Delegates Non Potest Delegare = Sub-Delegation (where an administrative decision-maker is
sub-delegating powers to another actor)
*NOTE – The ISSUE arises when this Sub-Delegation OFFENDS PROCEDURAL RULES in some way
Delegation
Points to the conferring of an authority to do things which otherwise that person would have to do himself
Deciding WITHOUT a Hearing
Only those members of an agency, who hear a particular case, may be the ones who decide it.
The rationale of this requirement is that a person is denied an adequate opportunity to influence the decision if they are unable to directly address those who make or who participate in making the decision (i.e. breach of DOF for a member of a hearing panel who is unable to attend for part of a hearing, but them resumes sitting and participates in making the final decision)
*The decision MUST be made by members who heard ALL the evidence and argument, provided they have a minimum number of members to deliberate.
Delegating the duty to hear – MUST take place as a procedural obligation
Consultations among agency members – to what extend does the DOF bar members of an agency who
heard a case when they were discussing it with other members of the agency AFTER the hearing took place?
*Consolidated-Bathurst (1983) – panel members could consult with the “full board” on matters of POLICY and LAW, but NOT on matters of fact. AND the sub-delegation rule will be breached if a NEW POLICY or argument is proposed at a “full board” meeting and the decision is rendered on the basis of this NEW POLICY or argument without giving the parties an opportunity to respond.
“…The facts set out in the draft are taken as given and do not become the subject of
discussion. No vote is taken at these meetings nor is any other procedure employed to identify a consensus…no minutes are kept of such meetings nor is actual attendance recorded. “
With regards to “full board” meetings and the Audi Alteram Partem rule…the only possible breach of this rule arises where a NEW policy or a NEW argument is proposed at a “full board” meeting and a decision is rendered on the basis of this policy or argument without giving the parties an opportunity to respond”
*Tremblay (1992) – INSTITUTIONAL INDEPENDENCE is BREACHED when there is “COMPULSORY CONSULTATION” and “SYSTEMIC PRESSURE” to conclude a decision.
Compulsory Consultation creates at the very least, an appearance of a lack of independence, if not actual constraint…
Plenary meetings of the Commission are held so as to arrive at a consensus: a vote by a show of hands is generally taken, as well as attendance; minutes are kept which is a breach of independence (or lack of independence).
…The fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers.
AND while secrecy remains the rule at plenary meetings, it may be lifted if/when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.
Consolidated Bathurst
Tremblay
· Meeting initiated at option of panel / DM’s.
· No impediment to decision
· Attendance at meeting was optional
· No minutes of meeting
· No vote at meeting
· Original panel still made decision despite what occurred at meeting.
Meeting designed to discuss issues & policy
THIS IS OK!!!
· President could initiate meeting.
· Decision unlikely to be issued without a meeting if it was a novel / new point of law
· Attendance at meeting was compulsory
· Minutes of meeting taken (undue pressure on decision makers)
· Vote taken at meeting
· Tie vote between panel members broken by President.
Process designed to achieve consensus
THIS IS WRONG!!!
Ellis-Don (2001) – A change between a first draft and the final reasons for judgment does NOT create a presumption of impropriety. So long as the consultations are limited to QUESTIONS OF POLICY AND LAW, the decision makers are free to make up and change their own minds as they see fit.
Agency Counsel
Limitations that the DOF may impose on agencies’ ability to seek the assistance of counsel in the discharge of their adjudicative functions…
At the hearing – it is common for tribunals to have counsel available to advise on the admissibility of
evidence, procedure, etc that arise during the hearing.
-The problem arises: if/when counsel oversteps their role as advisor and assumes functions that are more appropriate for the chair or other members of the tribunal, therefore, giving the impression that counsel is running the hearing.
-This could give rise to the challenge for BIAS on the ground that a reasonable observer might conclude that someone, other than one statutorily authorized to decide, was the decision maker.
The preparation of reasons – the volume and complexity of disciplinary proceedings have grown.
-The problem is: to what extent is the giving of reasons a function that must be performed personally by the statutorily designated decision-makers, rather than institutionally through the use of the full range of agency resources?
- Black –Letter Law = 1) the decision made must be that of the tribunal members themselves;
2) the reasons for the decisions must be in substance to those of the tribunal members, not their clerks or their counsel.
*NOTE – courts have allowed tribunals, such as a Committee, to seek the assistance of counsel or some other staff member for assistance in the preparation of its reasons (see Khan)
Reasons review – the chairs of many agencies take the view that there is a corporate responsibility for
the quality of the agency’s work (including decisions made by its members after a hearing)
-The problem is: when sitting on a hearing panel, members exercise their powers with total independence, like judges, but as members of an agency with a statutory mandate to discharge.
Agency Guidelines
Some administrative agencies make extensive use of “guidelines” on the interpretation of their enabling legislation and the exercise of their statutory discretion. (see text pg.633 for The Guidelines)
*NOTE – the issues here is if these big institutions/boards try to standardize decisions by using these guidelines.
S U B S T A N T I V E R E V I E W
When courts are asked to review questions of LAW, FACT, or MIXED (fact and law), and discretion made by these decision-makers…..
……what approach should the courts bring to the task and what tests should they apply?
Error of Fact = a misapprehension of facts
Error of Law = a misconstrued law
Discretion (mixed) = a wrong choice or outcome
Once the court can identify that one of these substantive errors have taken place, the court must then apply a STANDARD OF REVIEW (SOR) analysis
The current standard of review (SOR) framework is laid out by Dunsmuir :
The SOR is:
(1) The presence and terms of a privative clause or right of appeal in the statute
a. Privative clause is not determinative (i.e. absence of it is not automatically “correctness” standard. Presence of it is not automatically “reasonableness” standard)
b. Strong privative clause weight in favour of GREATER DEFERENCE
(2) The nature of the question that is under review (law, fact, or mixed)
a. Generality of a question is indicative of a more LEGAL, and less factual question
b. FACTUAL questions tend towards GREATER DEFERENCE, and LEGAL questions tend towards LESS DEFERENCE
(3) The expertise of the decision-maker
a. May derive from a specialized knowledge of a topic, or from experience and skill in the determination of a particular issue
b. Relative expertise in tribunals weigh in favour of GREATER DEFERENCE
(4) The statutory purpose and context in which the decision making took place
a. Where there is a ‘polycentric’ purpose (multiple policy issues, interests…), there is GREATER DEFERENCE
Dunsmuir (2008) - the 2 variants of reasonableness review should be collapsed into a single form of “reasonableness” review. The result is a system of judicial review comprising two standards: correctness and reasonableness. AND overruled Knight - Reaffirmed that office holders at pleasure are not entitled to a public law duty of procedural fairness (confirming Ridge v Baldwin).
(A) Reasonableness standard: courts will give due consideration to the determinations of decision makers. DEFERENCE requires respect for the legislative choices to leave some matters in the hands of administrative decision makers.
à Most common: courts tend to agree with/respect original decision
(B) Correctness standard: a reviewing court will NOT SHOW DEFERENCE to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. Thus, the court must ask whether the tribunal’s decision was correct.
Case Analysis: Method for selecting the appropriate SOF:
(A) Reasonableness standard:
(1) The presence or absence of a privative/preclusive clause
o Because a privative clause is evidence of Parliament or a legislature’s intent of DEFERENCE. However, the presence of a privative clause is not determinative.
(2) The nature of the question at issue;
o Only if the question is one of FACT, DISCRETION or POLICY, then DEFERENCE will usually apply automatically.
o Only if the questions are of MIXED law and fact
o (question of law only exists in “correctness”)
(3) The purpose of the tribunal as determined by interpretation of enabling legislation;
o Where a tribunal is interpreting its own statute(s) closely connected to its function, with which it will have particular familiarity reasonableness will attract (thus, DEFERENCE).
(4) Expertise (in the application of a general common or civil law rule) will attract DEFERENCE.
o Adjudication in labour law.
(B) Correctness standard:
· A question of LAW (that is of central importance to the legal system and outside the specialized are of expertise of the administrative decision maker).
· A question of JURISDICTION
o Constitutional questions regarding the division of powers (National Energy Board).
o Courts must substitute their own view of the correct answer where the question at issue is one of general LAW “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (Toronto (City) v C.U.P.E.).
Applying SOF in Dunsmuir:
(1) Privative clause existed (“every order, award, direction, decision ... of an adjudicator is final and shall not be questioned or reviewed in any court”.
(2) The nature of the question at issue is not one that is of central importance to the legal system nor outside the specialized expertise of the adjudicator indicating a reasonableness standard.
(3) Provision for timely and binding settlements of disputes implies a reasonableness standard.
(4) The nature of the regime favours the standard of reasonableness: labour arbitrators.
HELD: the appropriate standard is reasonableness.
THEREFORE HELD: the adjudicator’s interpretation was unreasonable. The reasoning process of the adjudicator was deeply flawed.
(1) What is a PRIVATIVE CLAUSE?
= Statutory provisions whose intended effect is to make the delegate’s decision FINAL and BINDING, and to also PREVENT any review of the delegate’s decision by the courts.
= In other words, this clause is a provision within a statute that tries to remove a court’s ability to review the decisions made by a tribunal or any other administrative agency.
i.e. s.68(24) of Ontario Employment Standards Act states:
“a decisions of a Board under this section is final and binding upon the parties to the decision and such other parties as the Board may specify”
Problem – courts do not accept that privative clauses can remove review for jurisdiction
Jacmain (1978) – “It is hard to believe that a legislature could create a tribunal with a limited jurisdiction, and yet, bestow on such tribunal [by shielding it from judicial review] an unlimited power to determine the extent of its jurisdiction”
Crevier (1981) – “this court has declared unequivocally that a provincially-constituted statutory tribunal
cannot constitutionally be immunized from review of decisions on questions of JURISDICTION”
So, how do courts get around a privative clause?
Dunsmuir – it seems to remain important to closely examine the reasons given by the court to justify overturning a decision where the decision was protected by a “full” privative clause (uses broad language)
Crevier (1981) – Any legislation which has a privative clause purporting to exclude review of jurisdictional matters, is OUTSIDE the jurisdiction of s provincial legislature
-Legislature cannot oust the courts’ power to review a decision of an administrative agency, or its enabling statue on the ground that it is beyond the constitutional capacity of that legislature.
-THUS, legislation that confers power on public authorities are ALWAYS subject to challenge on the basis that there has been a disregard of the division of powers between Parliament and the provincial legislatures provided in s.91 and s.92 of 1968 Act-1982 Act.
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