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ADMINISTRATIVE LAW
Public Law – basic principles
· Public Law = The relationship between the individual and the state
· Public Law = includes administrative law, constitutional law, and criminal law.
Definition of Administrative Law:
-Checks and/or balances to control the exercise of delegated authority.
-A body of principles that govern the exercise of power granted by statute.
-The source of power determines whether the decision making is subject to administrative principles.
-The courts have the ultimate supervisory control over the exercise of power delegated by statute or regulation.
i.e. if the individual or body is acting within provincial jurisdiction, the superior court of the province supervises;
i.e. in the federal sphere, the Federal Court generally exercises supervisory control
Two Fundamental Elements of Administrative Law:
(1) The development of the duty of fairness (governing the procedure for decision-making)
(2) The pragmatic and functional approach to judicial review of the substance of the decision itself
NOTE: lawyers must understand and apply the principles of statutory interpretation when analysing a tribunal’s decision-making authority.
Delegated Decision-Making Power:
- Whether your client is applying for social benefits or for a zoning variance, or seeking a restaurant liquor licence, it is critical to examine what the decision-maker can do and how the decision-maker can do it.
The SOURCE of Delegated Decision-Making Power:
-This is STEP 1 for any administrative law analysis
-The primary source of a delegated power to decide is whether there will be:
a STATUTE or a REGULATION
-The source will indicate WHO can make a decision...?
i.e. cabinet, a minister, a government official, or a regulatory agency
-The source will also indicate WHAT decision-making power has been delegated...the nature of the delegated power varies considerably...
i.e. issuing a fishing license if certain info has been provided
(this is a limited delegated power. It has a purely administrative function with the absence of discretion).
i.e. seeing statutory language that permits a Minister to make decisions ‘in the public interest’
(this is a delegated power which exercised a very broad discretion)
IN ANALYZING HOW THE POWER IS TO BE EXERCISED, THERE ARE 2 ELEMENTS:
(1) THE PROCEDURE TO BE FOLLOWED BEFORE A DECISION IS MADE
(statute or regulation may specify procedural steps before a decision is made)
(2) THE SUBSTANTIVE STANDARDS TO BE APPLIED IN MAKING THE DECISION
(statute or regulation will usually set out the purposes for which a statutory power is to be exercised, any necessary preconditions before the decision can be made, as well as any factors to be considered in making the decision....how much deference?)
(see below)
-The source of the power will impose LIMITS on delegated decision-making. The LIMITS come from 2 other sources: the Constitution and the common law.
The Constitution:
-The Constitution places 2 kinds of LIMITS on delegated decision-making:
(a) A delegated decision-making power and the way it is exercised cannot contravene the Canadian Charter of Rights and Freedoms
(b) Because of the division of powers between Parliament and the provincial Legislatures, there are certain powers that a province or federal government cannot exercise because the power belongs exclusively to one jurisdiction or the other. i.e. Canada Mortgage and Housing Corp v Iness
The Common Law:
-The common law imposes LIMITS on the exercise of a delegated decision-making power. These fall into 3 categories:
(a) Procedural Limits
-The rules of natural justice centre on 2 elements:
àa person’s right to adequate NOTICE of the case to be met and a right to a HEARING or other FAIR procedure
àa person’s right to an UNBIASED decision-maker.
-In Ontario, the rules of natural justice have been codified in:
àThe Statutory Powers Procedure Act (SPPA)
-The SPPA only applies when the decision-maker is required to hold a hearing
So, the first step for a lawyer analyzing the content of a client’s procedural rights is to determine whether the SPPA applies?
If so, procedural rights are spelled out in the SPPA.
If not, procedural rights are imposed by the common law
NOTE: procedural rights imposed by common law will depend on the nature of the person’s right affected by that exercise.
NOTE: when the full array of natural justice rights (e.g. the right to the presence of a lawyer, to call witnesses, to cross-examine adverse witnesses) is not applicable, more limited rights of fairness are still applicable (e.g. the right to know the case to meet and the right to make a submission to an unbiased decision-maker)
(b) Jurisdictional Limits
-The decision-maker must operate within the power that has been delegated.
-The source of that power is the statute delegating the decision-making power
(c) Errors in Law
-For example, it is an error of law to base a decision on irrelevant factors
-For example, it is an error of law to fail to consider relevant factors
The CONTROL of the ORIGINAL Exercise of the Delegated Decision-Making Power:
-This is STEP 2 for any administrative law analysis
-If the client is somehow dissatisfied with the ORIGINAL decision and wants to challenge it, the lawyer must examine how the ORIGINAL exercise of the delegated decision-making power can be controlled (reversed, varies, set aside, ordered to be done again)
Statutory Reconsideration or Appeal Mechanisms:
-Again, the starting point is the statutory scheme.
-The statute will provide for some sort of appeal, review, or reconsideration mechanism
-Thus, one has to find a statutory provision permitting a challenge of the ORIGINAL decision.
-Obviously, different statutes provide different mechanisms.
EXAMPLES:
Residential and Tenancies Act, 2006.
An order of the Landlord and Tenant Board can be appealed to the Divisional Court, but only on a question of law and within 30 days.
Human Rights Code.
A party may request the Human Rights Tribunal to reconsider a decision “in accordance with the Tribunal rules.” The Tribunal’s rules restrict requests for reconsideration to final decisions. The Code provides that Tribunal decisions cannot be appealed.
Legal Aid Services Act, 1998.
An appeal lies to an area committee from an area director’s decision to issue a certificate or from the area director’s decision to cancel a certificate. A further appeal lies to the officer or employee of Legal Aid Ontario designated by the board of directors of Legal Aid Ontario.
AS A GENERAL PRINCIPLE, A PERSON IS EXPECTED TO EXHAUST ALL STATUTORY APPEAL OR REVIEW MECHANISMS BEFORE RESORTING TO THE COURTS BY WAY OF JUDICIAL REVIEW.
Judicial Review:
- The court’s control of delegated decision-making independently of any statutory authorization such as a right of appeal
-When the statutory mechanisms for challenging decisions have been exhausted...
...The next area for consideration is judicial review
-The courts will control delegated decision making by way of judicial review when the decision-maker has EXCEEDED THE LIMITS set out by the statutory scheme: limits imposed by the constitution, or limits imposed by common law.
Ø In Ontario, the procedure for judicial review is set out in:
à The Judicial Review Procedure Act (JRPA); and
àR.68 of Rules of Civil Procedure
-This means that applications for JR are brought in the Divisional Court
NOTE: There is NO statutory time limit for seeking JR in the JRPA. However, since the remedy on JR is discretionary, the doctrine of laches applies: a court may dismiss an application because of delay.
NOTE: Applications for JR can be brought not only to challenge decisions that have been made, but also, in appropriate circumstances to prohibit a decision from being made or to require that decision be made.
Ø Federally, the procedure for judicial review is set out in:
àThe Federal Courts Act
-In the Federal context, as in the provincial context, the specific statutory scheme will set out any appeal or reconsideration mechanisms.
-In contrast to the Ontario’s JRPA, the federal legislation attempts to codify the federal common law on administrative law remedies (i.e. by specifying which division of the court one seeks relief, specifying time frames for seeking relief, specifying the grounds on which relief may be sought or granted)
NOTE: The relief granted by courts on JR is very limited! With few exceptions, the courts will NOT substitute their decisions on the SUBSTANTIVE issue decided by the delegated decision-maker.
-What the court may do is, set aside the original decision and return the matter to the statutory decision-maker to be decided again.
PROCEDURAL Entitlements:
-Public officials and agencies must follow proper procedure in exercising their delegated decision-making power.
Step 1 – is to look at the applicable statutory scheme.
-The statute, regulations, or by-laws specify what notice is to be given and to whom, and may set out other procedural components (i.e. the right to call witnesses and to cross-examine).
-The statute may also indicate what kind of evidence is admissible. In Ontario, the second source of procedural rights is the SPPA.
-When a statute is silent as to procedure, and whether or not the SPPA applies, administrative law imposed certain requirements on decision-makers to ensure that people subject to government action receive a FAIR process...
Step 2 – is to look at 2 concepts:
-Natural Justice
-Fairness
-Martineau v Matsqui Institutional Disciplinary Board – where the court said that it ought not to seek to distinguish between these two concepts
Natural Justice:
-Apply to statutory decision-makers that are classified as “judicial” or “quasi-judicial” powers (as opposed to those that exercise “administrative” or “executive” powers)
Executive powers Administrative powers Quasi-judicial powers Judicial powers
3 6 8 10
-Prime Minister -Tribunal -Liquor Board -Court / Judge
-M.P -Right to.... -Right to...
-But has LESS -Much ‘right to’
‘right to’ powers than powers
Judicial power
*the numbers illustrate the amount of FAIRNESS / NATURAL JUSTICE each power has. 10 being the most power.
*The Minister of National Revenue v Coopers and Lybrand– SCC identified the factors to consider in determining whether a decision or order is one “required by law to be made on a judicial or quasi-judicial basis”.
àIs there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?
àDoes the decision or order directly or indirectly affect the rights and obligations of persons?
àIs the adversary process involved?
àIs there an obligation to apply SUBSTANTIVE rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?
“one must have regard to the subject matter of the power, the nature of the issue to be decided, and the importance of the determination upon those directly or indirectly affected thereby...”
o Natural Justice: Content
-The principle of Natural Justice have 2 main components:
(1) The Right to Be Heard
A party who has a right to be heard is entitled to prior NOTICE of the proceedings:
-NOTICE must be given early enough to allow a party to prepare the case, attend before the decision-maker, and make representations.
-NOTICE must be reasonable and provide sufficient info
-NOTICE must disclose the real intention of the proposed decision- maker; Re Central Ontario Coalition Concerning Hydro Transmission Systems et al. And Ontario et al.
NOTICE also goes beyond initial notification of the hearing.
-A party is entitled to know “the case to meet”
-A tribunal cannot rely on evidence provided to it without giving NOTICE to affected parties and giving the parties a chance to respond to the evidence.
The form of the “hearing” will vary, depending on the context.
-May be oral hearing
-May be restricted to written submissions
-May be open to the public or private
(2) An Impartial Decision-Maker
-A decision-maker must not have a pecuniary interest in the outcome of the process, nor demonstrate a lack of impartiality or neutrality through comments or conduct.
-Administrative law principles provide that a decision-maker MUST BE FREE OF A REASONABLE APPREHENSION OF BIAS.
-Test framed in Committee for Justice and Liberty v National Energy Board
“What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly”
-In C.U.P.E v Ontario (Minister of Labour) - it was held that the test should NOT be directed to the subjective perspective of one of the parties but to the reasonable detached and informed observer.
(i) Apprehension of Personal Bias
-May arise because of the identity of the decision-maker (where the decision-maker is also party in another similar case).
-But successful allegations of perception of personal bias are rare
(ii) Institutional Bias
-Allegations made not because of decision-makers identity, but because of perceived institutional bias
-Here, a detailed examination of the statutory scheme is required to see whether a claim to NATURAL JUSTICE is precluded by the statutory language and scheme. And legislation may authorize certain forms of “institutional bias”
-The focus is on whether it is arguable that the decision-making tribunal has arrived at a preliminary judgement BEFORE starting its hearing process;
Re W.D. Latimer Co. Ltd and Bray where the statutory scheme permitted commission members to be present at meetings where investigations were discussed, even though the same members later sat as decision makers.
-The extent of involvement in the various aspects of a commission’s different functions may give rise to an apprehension of bias
Gardner v Ontario (Civilian Commission on Police Services) where the commission had various functions, the court found a reasonable apprehension of bias in having those members adjudicate (deliver judgment), noting that the Act is flexible and would readily permit separation of members for investigation and adjudication.
-The statutory scheme for the appointment of decision-makers may prevent an argument that the decision-maker is not “independent”, as required by the rules of NATURAL JUSTICE
Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch) where the SCC notes that like all principles of NATURAL JUSTICE, the degree of independence required of tribunal members may be ousted by express statutory language.
-Institutional practices such as internal consultation, may give rise to claims of an apprehension of bias or lack of independence
Ellis-Don Ltd. v Ontario (Labour Relations Board) where the SCC recognized that institutional consultation ensures consistency in the decisions of an administrative body and does not create an apprehension of bias or lack of independence if the following rules are respected:
--the consultation proceeding cannot be imposed by a superior level authority within the administrative hierarchy;
--the consultation must be limited to questions of policy & law;
--even on questions of law and policy, the decision-makers must remain free to make their own decision.
(iii) The Source for the Claim of an Apprehension of Bias
-The an adjudicator thinks that personal circumstances might give rise to an apprehension of bias, the adjudicator will disclose the facts to the parties.
-Also, there may be comments made by the decision-maker outside of the particular proceeding or hearing.
-The test for apprehension of bias is whether the official is still capable of being persuaded or had expressed a final opinion that could not be changed.
-Public statements expressed by a tribunal member during or after the hearing may form the basis of a claim of a reasonable apprehension of bias.
-Finally, a reasonable apprehension of bias may be based on the reasons for the administrative decision;
*Baker v Canada (Minister of Citizenship and Immigration) where the SCC concluded that the immigration officer’s notes were the basis of a reasonable apprehension of bias.
-Actual bias or reasonable apprehension of bias on the part of the decision-maker renders the decision void
-An allegation should be raised before the decision-maker at the outset of the hearing or as soon as circumstances are known.
-In this situation, the lawyer should bring a motion seeking that the tribunal rescue itself before any further proceedings are held.
-A court might find that a party has waived the tight to allege bias by participating in the tribunal hearing process without objecting after knowing the circumstances.
Fairness:
-The principles of NATURAL JUSTICE apply when a decision is required to be made on a “judicial” or “quasi-judicial” basis
-However, there are a number of decisions of public officials and regulations that cannot be characterized as “judicial” or “quasi-judicial”.
-The principles of NATURAL JUSTICE often require trial-like procedures, are overly formal and inappropriate for the exercise of many public powers.
-THEREFORE, the concept of FAIRNESS arose as a result of these factors.
-Through the doctrine of FAIRNESS, courts can assess the procedural adequacy of decisions made by public officials (even though the decisions are not made in accordance with the principles of NATURAL JUSTICE).
*Re Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police where the SCC held that Nicholson, a probationary officer, was entitled to some procedural protection after being dismissed from employment without being told why or having an opportunity to explain himself, “He should be treated ‘fairly’ not arbitrarily”.
-FAIRNESS aims to ensure that a person has the opportunity to advise the decision-maker before the decision is made of any relevant fact or argument that should be known for the decision-maker to reach a rational conclusion.
-The pre-decision right to FAIRNESS comprises of 2 elements:
(1) The right to know the case to meet;
(2) The right to make submissions to the decision-maker
Also, FAIRNESS may require that the decision-maker provide reasons for the decision.
NOTE: if those elements of FAIRNESS are in the decision-making process, courts are reluctant to be involved in mandating specific procedural steps or codes
Knight v Indian Head School Division No.19
“...every administrative body is the master of its own procedure and need not assume the trappings of the court. The objective is to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair”
-Thus, the real issue is to see whether the procedural safeguards are sufficient to provide a fair decision in the particular circumstances. The inquiry should examine whether all of the circumstances, the person whose interests are affected had a meaningful chance to present one’s case and have it considered by the decision-maker.
o Fairness: Factors Affecting the Content of the Duty of FAIRNESS
In Baker, the SCC outlined criteria to use in determining what procedural rights the duty of FAIRNESS requires in a given set of circumstances:
(i) The Nature of the Decision Being Made:
The more procedural rights provided for by the process, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision-making, the more likely it is that procedural protections closer to the tribunal model will be required by the duty of FAIRNESS.
(ii) The Nature of the Statutory Scheme and the Terms of the Statute Pursuant to which the Body Operates:
Greater procedural protections will be required when no appeal procedure is provided within the statute or when the decision is determinative of the issue and further requests cannot be submitted.
But when the decision is NOT “determinative”, lesser procedural protection is called for.
i.e. when preliminary administrative process is investigatory or leads only to a recommendation and a right to a hearing occurs later in the process, a party’s procedural rights may be limited to receiving written disclosure of the substance of the investigation and having an opportunity to make a written submission. The parties would have full participatory rights at the hearing later in the legislative scheme.
(iii) The Importance of the Decision to the Individual or Individuals Affected:
For example, when the decision will affect one’s employment (as in Nicholson) or the right to continue in a profession, higher procedural safeguards will be required.
Even when the decision under review is “legislative”, such as the passing of a by-law (usually calling for the lowest form of procedural rights), the SCC has held in Homes Realty and Development Co. v Wyoming (Village) that a party will be entitled to FAIRNESS because the decision affects property rights.
One also sees a distinction between procedural rights when a decision is made to cease providing a benefit, as opposed to granting a benefit in the first place. In Re Webb and Ontario Housing Corporation, the court held that a tenant was entitled to FAIRNESS when her lease was being terminated, but noted that a decision not to grant a tenancy could have been made without any procedural protection.
NOTE: a claim to FAIRNESS does not require that a “right” be affected by a statutory decision. The development of the doctrine of fairness calls for procedural protection even when it is a person’s “interest” rather than a right that is affected by the decision.
(v) The Legitimate Expectations of the Person Challenging the Decision:
The circumstances affecting procedural FAIRNESS take into account the promises or regular practices of administrative decision-makers. It will generally be unfair for them to act in contravention of representations as to procedure or to backtrack on substantive promises without according significant procedural rights.
NOTE: the doctrine of “legitimate expectations” gives procedural right ONLY. One cannot claim a right to a particular result or outcome.
(vi) The Choices of Procedure Made by the Agency to the Decision-Maker the Ability to Choose its own Procedures or when the Agency has an Expertise in Determining what Procedures are Appropriate in the Circumstances:
Again, this factor (like the others) is not determinative, but courts will give weight to the choice of procedures made by the agency itself and its institutional constraints.
(vii) The Influence of Charter Principles on Procedural Protection:
The development of Charter jurisprudence has also helped to ensure that appropriate procedural protection pervades public law decisions. In R v Caleddu, the court held that a parole board could not revoke a person’s parole without holding an oral hearing. Although the principle of FAIRNESS did not call for such a hearing, s.7 of Charter, providing for 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,” did require such a hearing before parole was revoked.
SUBSTANTIVE Review of the Decision:
-The core of judicial review is examining the extent to which courts will set aside decisions made by statutory decision-makers.
-Statutory decision-makers must act within the scope of the powers given to them by the legislative scheme otherwise; they are acting outside their jurisdiction (ultra vires)
-It is inappropriate for courts to intervene in the substance of public decision-making that is otherwise legal.
-In Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp., the SCC signalled the development of the modern approach to judicial review of the substance of the impugned decisions made by statutory decision-makers: a general policy of judicial restraint.
-Following this, two subsequence decisions of the SCC have had a major impact on the modern approach to judicial review:
U.E.S Local 298 v Bibeault and
Pushpanathan v Canada (Minister of Citizenship and Immigration)
Briefly, the pragmatic and functional approach to judicial review calls for a 2-step approach:
(1) Determine the appropriate standard of review for the particular element of the decision; and
(2) Scrutinize that element of the decision using the appropriate standard of review.
-In Voice Construction Ltd. v Construction and General Workers’ Union, Local 92, the SCC emphasized that, “Only AFTER the standard of review is determined, can the administrative tribunal’s decision be scrutinized”.
-In *Dunsmuir v New Brunswick (2008), the SCC decided that there are only two common law standards of review: CORRECTNESS and REASONABLNESS.
(combined ‘reasonable simpliciter’ and ‘patent unreasonableness’ into reasonableness, and left correctness the same).
-Further, the SCC’s 2009 decision in *Canada (Citizenship and Immigration) v Khosa held that, when the standard of review is defined as patent unreasonableness, the legislature is calling for DEFERENCE if the decision is reviewed.
NOTE: Deference is called for when the standard of review is patent unreasonableness and/or when it is reasonableness. And Khosa suggests that from a practical perspective, decisions will receive the same sort of deference, whether the standard is reasonableness or a statutorily set as patent unreasonableness. (patent = obvious)
-Administrative law errors, that permit judicial intervention, fall into the following categories:
àstatutory preconditions to the exercise of public powers must be met before their exercise;
àa decision must be made on the basis of relevant considerations, relevancy being determined primarily by reference to the governing legislation. Reliance upon an irrelevant consideration or the failure to consider relevant ones are equally erroneous;
àpublic powers may not be exercised for purposes other than those for which the owners were granted;
àa public decision-maker may not bind itself of fetter its discretion by making general rules which apply to every case. Each case must be decided on its own merits, although the decision-maker may establish guidelines or general policies which assist but do not determine the decision-making process;
àpublic powers must not be exercised in bad faith;
àpublic powers must be exercised in accordance with the principles of NATURAL JUSTICE and FAINESS, where they apply;
àthere must be some evidence before a decision-maker to justify findings of fact;
àpublic powers must be exercised by those entrusted with them and may not be improperly delegated to others;
àpublic powers must not be exercised in violation of the Charter pr the Canadian Bill of Rights;
àa decision must not be unreasonable.
In addition, the official or tribunal may run afoul of the appropriate standard of review in its interpretation of the governing or related legislation or common law principles applicable to the factual situation, or the application of those principles to the facts.
-As a GENERAL RULE: even when such an administrative law error is found, the courts do NOT substitute their opinion for that of the decision-maker. In most cases, the matter will be remitted to the decision-making body to be re-determined “in accordance with the law”.
Practice Before Administrative Tribunals
-As the administrative tribunal is a creature of statute, some aspects of the preparation and conduct of the hearing differ from trial preparation, most notably in motion practice before the tribunal.
Material to Examine Before the Hearing Starts:
Legislation:
-The legislation that creates the statutory decision-making is the central focus of the lawyer’s analysis because statute will govern what decisions can be made and by whom, and indicate what kind of evidence is relevant by identifying the factors to be considered by the tribunal in making its decision.
-Legislation may indirectly affect a party’s procedural rights
Regulation:
-In a number of situations, the tribunal’s power may be prescribed, expanded, or restricted by the applicable regulations.
-Some tribunals have powers set out in their by-laws.
Rules:
-s.25.1 of SPPA permits tribunals to make rules of general or particular application.
-Some tribunals have established rules, even without explicit statutory authority as provided by the SPPA.
i.e. s.17.1 of SPPA permits tribunals to order a party to pay all or part of another party’s costs if they have made rules in that regard under s.25.1 of SPPA. This power to award costs may be exercised unless the conduct or course of conduct of a party has been unreasonable, frivolous, or vexatious, or a party has acted in bad faith. The rules made under s.25.1 may include the circumstances in which costs may be ordered and the amount of the costs or the manner in which the amount of costs is to be determined.
Policy and Practice Directions:
-A tribunal may have published a policy or policies or practice directions. Alternatively, a minister responsible may be authorized by the applicable legislation to issue policy guidelines. The lawyer’s readings of the statute will show whether the minister has that power.
Tribunal Decisions:
-Advances in information technology make it much easier and less time consuming to find prior tribunal decisions.
Application of the SPPA:
-To determine whether the SPPA applies to the tribunal’s proceeding, one should:
à Examine whether the tribunal is expressly excluded from the SPPA by the statute creating the tribunal or by s.3(2) of SPPA, which excludes certain tribunals; and
à Examine s.3(1) of SPPA to see whether the tribunal is required by statute or “otherwise by law” to afford the parties a hearing before making a decision.
THEREFORE
If the statute provides for a hearing, then the criterion is met.
If the statute is silent, then one has to turn to the principles of NATURAL JUSTICE and FAIRNESS to see whether the common law requires that a hearing be held.
NOTE: the tribunal must be exercising a “statutory power of decision.” The decision-maker must be authorized by statute to make the decision in question.
Operation of the SPPA:
-Some of the important features of SPPA are:
-s.25.1 – tribunal makes own rules
-s.5 – provides for written or electric hearings
-s.9 – oral hearings may be open to the public, subject to exceptions
Parties’ Rights
-s.10 – provides that a party may be represented by a lawyer or an agent.
-s.10.1 – participatory rights of the parties
-A party to a proceeding may conduct a cross-examination of witnesses, but this is limited by s.10.1(b) and s.23
Witness’ Rights:
- s.11 – witness has a right to advice from a counsel or agent, but counsel or agent cannot participate in hearing without leave of tribunal
-s.14 – protects witness whose answers at a hearing may incriminate them
Evidence – Admissibility:
-The SPPA has relaxed the threshold for the admission of evidence. See s.15(1), (2), and (3)
-s.16 – allows tribunals to take a broader judicial notice of facts
Motions:
-Motions brought before the courts generally relate to procedural matters and the details of motion procedure are laid out in the rules.
-Conversely, many tribunals have a policy-making role; they do more than just apply the law to the facts.
-A motion brought before a tribunal will be adjudicated not only on the basis of the facts and the law, but also on public policy considerations.
-Additionally, the purpose of many tribunal proceedings is to have an adjudicative system that is faster and less procedurally formal than court proceedings.
-Further, the detail of motion procedure before tribunals and the possible relief to be obtained by motion are not as easy to ascertain as they are in the Rules of Civil Procedure.
-Tribunals the ability to make interim orders or decisions. See s.16.1 of SPPA
-The tribunal’s rules may address the procedure for bringing a motion. If they do not, the lawyer should consider whether to advise the tribunal in advance that a motion will be brought.
NOTE: bringing a motion, and succeeding, will allow the lawyer to seek judicial review.
NOTE: Tribunals have NO inherent jurisdiction. Their powers are set out in their enabling legislation or in the SPPA. Thus, the lawyer needs to find a legislative basis for any relief sought by way of motion.
Alternative Dispute Resolution (ADR)
-The adjudicative system is not the only procedure for resolving disputes.
-ADR, originally designed to be a fast and less formal then court processes, have
become beneficial in administrative law proceedings as well as in civil litigation.
-ARD includes mediation, conciliation, negotiation, or any other means of facilitating the resolution of the issues in dispute.
-s. 4.8 SPPA – permits tribunals, if they have made rules under s.25.1 respecting ADR and if the parties consent, to direct the parties to participate in ADR.
-Under s.4.8(3), tribunal rules respecting ADR must include guidelines dealing with situations when
à tribunal approval of the resolution is required; and
à a tribunal order is required by statute or otherwise
NOTE: ADR will lead to a resolution only if the parties enter into the ADR process voluntarily, with a view to making a good faith effort to reach a solution.
Judicial Review of Administrative Action
Definition of Judicial Review:
-The courts have supervisory jurisdiction over administrative decision-makers (the actions of public tribunals, boards, officers, and public decision-makers)
-JR is the means by which courts supervise those who exercise statutory or administrative powers in order to ensure that they do not overstep their legal authority.
-On application from a party, the courts may review administrative decisions and, at their DISCRETION, intervene where they find the decision exceeds the decision-maker’s statutory mandate or breaches principles of PROCEDURAL FAIRNESS.
-In some situations, the courts may also intervene where the decision-maker has committed an error of law or of fact.
Difference between Appeal and Judicial Review:
Appeal
Judicial Review
The right to an appeal is a statutory right which flows from some legislative instrument.
JR is generally available in a public law context; the right to JR need NOT be set out in a statute.
JR is a DISCRETIONARY remedy where the courts will usually refuse to review administrative action where a right of appeal exists and has not been exhausted.
The level of DEFERENCE accorded to the lower court depends on the nature of the issue under review.
In Housen v Nikolaisen SCC explained that the standard of appeal on question of law is one of CORRECTNESS. On question of fact, the appellate court will intercede where there is a “palpable and overriding error” plainly seen.
The standard of JR not only depends on whether the question is one of fact, law, or mixed fact and law, but also one a number of factors that the courts must consider when determining the level of DEFERENCE in a JR.
Courts have a very broad remedial jurisdiction on appeal. They can substitute their own decision for that of the tribunal or court appeals from and can generally order a broad range of remedies.
The courts’ remedial jurisdiction is limited to the powers set out in the applicable statutes: Federal Courts Act (FA)
Judicial Review Procedure Act (JRPA)
Also, in a JR, the courts cannot award damages; only costs.
Jurisdiction of the Courts to Review Administrative Action:
-There are 2 venues in which a JR can be pursued in Ontario:
(A) Provincially, before the Ontario Divisional Court
-JR of administrative decisions of Ontario bodies or tribunals is governed by: àJudicial Review Procedural Act (JRPA) and
àRules of Civil Procedure (Rules)
(B) Federally, before the Federal Courts
-The review of federal administrative action falls under:
àFederal Courts Act (FCA) and
àFederal Courts Rules (FCR).
Jurisdiction:
-The appropriate venue for a JR depends on the nature of the decision under review.
(A) Ontario Divisional Court = has jurisdiction to review decisions of bodies exercising statutory powers of decisions conferred upon them by an Ontario statute(but they cannot review acts of federal bodies). The JRPA defines “statutory power of decision” to include the powers of an inferior court. Thus, decisions of inferior courts are reviewable by the Divisional Court (JRPA, s.1)
(B) Federal Courts = may review any authority exercising powers conferred by a federal statute or order (FCA, s.2(1)). Thus, the Federal Courts have exclusive jurisdiction to review decisions, orders, and other administrative actions of all federal boards, commissions, or other tribunals (FCA ss.18.1 and 28)
NOTE: both these courts are statutory courts, so all their powers must derive from statue.
-There are 2 instances where the Ontario Superior Court (different jurisdiction from Ontario Divisional Court) can review the acts of federal bodies:
[1] The inherent jurisdiction to make declarations regarding the constitutionality of federal legislation or its application as well as matters relating to the Charter. Thus, the superior courts can declare that a statute or federal tribunal’s application of a statute is in breach of the constitution of the Charter, just like the Federal Courts.
[2] While Federal Courts have jurisdiction to issue mist of the traditional prerogative writs as well as the equitable remedies, its power to issue hebeas corpus is limited by the FCA to cases involving members of the Canadian Forces serving outside Canada. Thus, writs of hebeas corpus against any other class of individuals fall within the jurisdiction of the provincial superior courts. Also, provincial superior courts may quash or set aside a decision of a federal board.
General Principles:
-The following principles are relevant to both federally and provincially conducted judicial reviews:
1.The Availability of Judicial Review:
-Not every decision is subject to JR.
àOnly PUBLIC action or decision-making can be judicially reviewed (FCA s.2(1); JRPA, s.1). Thus, private action (like a private corporation’s decision to terminate an employee) cannot be subject to JR, only subject to a lawsuit.
àOnly the actual exercise of, or the failure to exercise statutory powers can be judicially reviewed (FCA s.2(1); JRPA, s.1).
àOnly decisions with some element of finality will be reviewed.
2.Standard of Review:
-This refers to the level of DEFERENCE the courts show to the administrative decision-maker.
-In a JR, the determination of the standard of review is a threshold question: the level of DEFERENCE applied is often determinative of the outcome of the case.
-The SCC regularly overhauls its approach to determining the standard of review. The most recent overhaul took place in 2008 in *Dunsmuir v New Brunswick.
-Dunsmuir has brought 2 important changes:
(1) It has narrowed the number of standard of review to two, by collapsing the two previous variants or reasonableness (‘reasonableness simpliciter’ and ‘patent unreasonableness’) into one.
(2) It has revamped the test for determining the standard of review, focusing on the nature of the question before the administrative tribunal.
Therefore, there are now 2 standards of review defined:
(1) Reasonableness
-The SCC recognizes that there can be more than one reasonable or acceptable answer that comes before administrative decision-makers.
-For the purposes of JR, a decision is “reasonable” if it falls within a range of acceptable answers and is accompanied by the requisite level or procedural fairness.
-Thus, even when reviewing on the standard of reasonableness, courts should only intervene if:
a) The decision in question is not within the range of defensible solutions; or
b) The decision-making process involves a breach of procedural fairness.
(2) Correctness
-The courts do NOT show DEFERENCE to the original decision maker, but rather, undertake their own analysis.
-A reviewing court applying the standard of correctness will NOT tolerate error and will intervene unless the impugned decision is correct.
Standard of Review: Determining the Appropriate Standard of Review
-Under Dunsmuir, the standard of review is determined by: (pg21)
1. Categorizing the nature of the issue faced by the administrative decision-makers
2. Use existing jurisprudence (existing case law) to identify the standard of review that corresponds to that category of issue.
Where no existing jurisprudence addresses the question, the SCC directs us to consider a number of factors to determine what standard of review applies:
(a) Categorizing the Nature of the Decision
-How are we to characterize the issues within the decision and determine whether a case presents a question of law, fact, mixed fact and law, policy, or discretion?
-Dunsmuir focuses on identifying the nature of the question.
Thus, step 1 = determine if its question of law, mixed fact and law, policy, or discretion
(b) Existing Jurisprudence
-Dunsmuir suggests that we should be guided throughout this analysis by existing jurisprudence.
-Once the nature of the question is categorized, the next step is to look to existing case law to determine what standard has been applied to that given category.
-The SCC has provided some guidelines based on existing jurisprudence.
The following categories of decisions will attract a STANDARD OF REASONABLENESS
o Question of fact;
o Exercising of discretion;
o Policy questions;
o Questions of mixed fact and law;
o An administrative decision-maker interpreting its enabling statute as it relates to its functions; and
o Issues of general law applied in a context where the decision-maker has particular expertise (i.e. in the labour law context)
The following categories of decisions will attract a STANDARD OF CORRECTNESS:
o Constitutional questions, including those relating to the division of powers;
o Questions directly to the administrative decision-maker’s jurisdiction and the scope of his or her powers or authority; and
o Issues of general law that fall outside the administrative decision-maker’s area of expertise (i.e. the interpretation of a statute of general application);
o Question of law
Thus, step 2 = look at existing case law to determine what standard of review (reasonableness or correctness) has been applied to the given category from step 1.
(c) Factors to Consider
-Where there is NO clear jurisprudence addressing the standard or review, the SCC directs us to consider the decision-making context and 4 factors:
(i) Privative Clause
· This is a provision in a tribunal or administrative decision-maker’s enabling statute which attempts to limit or exclude judicial review of that body’s administrative action. This will often include language such as “the tribunal’s decision is final and conclusive”.
· Although a privative clause (particularly a strong or full clause) is suggestive of a high level of DEFERENCE, it will not necessarily insulate the tribunal from JR
· The existence of a statutory right of appeal regarding an administrative decision is suggestive of a more exacting standard of review. But a court may refuse judicially reviewing an administrative decision until statutory rights of appeal have been exhausted.
(ii) Tribunal’s Expertise
· Pertains to both questions of law and fact and refers to the relative experience of knowledge of the tribunal compared to that of the court. It also relates to the composition of the tribunal and to its mandate.
· The more knowledge or expertise on a specific subject matter the tribunal has, the more DEFERENCE is given by the court.
· Thus, where the courts share the same competence and experience in a particular area as the tribunal, the less DEFERENTIAL standard may be given.
(iii) The Purpose of the Tribunal and its Enabling State
· The courts will consider the ORIGINAL decision-maker’s role and purpose as conferred in the empowering statute.
· Where the statutory scheme or the questions under review relate to principles of general law and are of importance to the legal system as a whole, the administrative decision will be reviewed at a more exacting standard.
· Where the scope of the administrative decision-making is broad and could have wide repercussions, the courts will be more included to intervene to ensure consistency and fairness.
(iv) The Nature to the Question
· This requires courts to review the nature of the particular issues raised in the JR.
· Dunsmuir suggests that the nature of the question is relevant to 2 different stages of the standard of review: (pg20)
1. Determine the nature of the question and then compare it to the initial jurisprudence in order to determine the standard of review
2. The relevant factor (including i, ii, iii) at the final stage of analysis. NOTE: Where the decision has been characterised, but NO jurisprudence satisfactorily determines the appropriate standard of review, the nature of the question forms part of the contextual test to determine the standard of review
Summary of the Dunsmuir Test:
STEP 1 = Determine the nature of the question.
Is it a question of fact, law, mixed law and fact, or policy, or an exercise of discretion?
STEP 2 = Based on the nature of the question:
Does the existing jurisprudence “satisfactorily” point to a standard of review?
STEP 3 = If there is no helpful jurisprudence, perform a contextual analysis and consider the following factors:
The existence or absence of a privative clause,
The relative expertise of the decision-maker,
The enabling statute, &
The nature of the question
3.Discretionary Bars to Judicial Review:
-The courts’ supervisory jurisdiction over administrative tribunals is a discretionary power, and despite JR, the courts may refuse to exercise their supervisory jurisdiction or to grant relief.
-There are circumstances in which the courts will refuse to exercise their discretion.
-The following are examples of circumstances where courts may refuse to exercise their discretion even in cases where the JR has merit:
àThe parties have failed to exhaust adequate alternative remedies, such as a right of appeal or reconsideration;
àThere has been an unreasonable delay in bringing the application for JR, particularly where the delay may have prejudiced the other parties;
àThe issues raised in the application for JR are hypothetical, moot, or not justifiable (i.e., are of a purely political, moral, or ethical nature);
àThe application is premature; and
àThe errors raised are too minor or trivial to warrant judicial intervention.
NOTE:
s.2 of JRPA = on an application for JR, the Ontario Divisional Court may grant relief despite any right of appeal.
Conversely, s.18.5 of FCA = bars JR by the Federal Courts where a statutory right of appeal exists. Thus, where a trial de novo (a retrial), a stated case, or a statutory appeal is available, the Federal Courts CANNOT also conduct a JR.
-It is important to consider whether the decision in question is actually subject to appeal.
-JR is only barred for those issues that can be raised on appeal.
4.Relief Available:
-The power of the court conducting a JR are set out in s.2 of JRPA in the case of the Ontario Divisional Court.
-The power of the court conducting a JR are set out in s.18.1 of FCA in the case of the Federal Courts.
-These statutes codify the prerogative writs that had been available at common law
-With the exception of costs, relief can ONLY be granted against the tribunal under review.
-Neither court may award damages on a JR. They are able to award costs between parties (CJA, s.131; FCR, r.400).
Relief Available: The Prerogative Writs:
-Where a JR is available, the Federal Courts and Divisional Courts may order prerogative remedies against tribunals within their respective jurisdictions.
(a) Mandamus
-Is used to compel the performance of a legal duty.
-Both the Federal Courts (FCA, s.18.1(3)) and the Divisional Court (JRPA, s.2(1)) may order a tribunal, actor, or decision-maker to perform a duty it has unlawfully failed to do or has unreasonably delayed in doing.
-An order in mandamus is appropriate where the party requesting the order has a clear right to the performance of a public or statutory duty and, although that party has demanded the duty be performed, the public body has refused to act.
(b) Certiorari
-Is the power to quash or set aside the decision of an administrative actor.
-Both the Federal Courts and the Divisional Court (JRPA, s.2(1)) can set aside a decision of the grounds that the tribunal committed an error of law or an error of fact, failed to observe a principle of NATURAL JUSTICE, or rendered a decision exceeding its jurisdiction.
-Although the courts may quash, they may NOT substitute their own decision for that of the tribunal.
-The courts will generally refer the matter back to the administrative decision-maker for determination, but specify that it go before a differently constituted tribunal. OR the courts may remit the matter back with directions (i.e. by clarifying a procedural issue before the tribunal or explain why a particular SUBSTANTIVE issue was incorrectly determined).
(c) Prohibition
-The Federal Courts (FCA s.18.1(3)) and the Divisional Court (JRPA, s.2(1)) may prohibit or restrain a decision, act, or proceeding of a public body.
-Can be used to prevent a decision-maker from acting if their conduct would give rise to a reasonable apprehension of bias. Or it can be used to prevent a tribunal from continuing proceedings that constitute an improper use of its jurisdiction.
-Thus, prohibition is the mirror image of mandamus.
-But instead of forcing the tribunal to act (mandamus), prohibition restrains the tribunal from acting.
-While certiorari is only available after decision was made, prohibition, like mandamus, is sought before a final decision is made.
(d) Hebeas Corpus
-Is a remedy available to persons detained or imprisoned and requires the person or entity detaining the applicant to produce the applicant before the court, and justify his or her detention.
-This is to cause the JR of the decision-making process of prison officials which impose more restrictive confinement measures upon inmates.
-This is not a discretionary remedy.
-A remedy must be granted where the applicant shows that his or her detention is without legal rounds.
-s.18 of FCA gives the Federal Court exclusive jurisdiction to issue hebeus corpus in relation to any member of the Canadian Forces serving outside of Canada. But where the Federal Courts does not have jurisdiction, provincial superior courts can issue hebeas corpus.
-The SCC found that, despite s.18, provincial superior courts also have jurisdiction to issue certiorari in aid of hebus corpus to review the validity of a detention imposed by a deferral authority. In arriving at this conclusion, the SCC considered these factors:
àThe fact that in the prison context, applicants have a choice of 2 venues (provincial superior courts, or Federal Court);
àWhile the Federal Court has greater expertise in federal administrative law, the provincial superior courts are equally well-versed in the applicable Charter principles;
àA hebeas courpus hearing may be more rapidly available before provincial superior courts than before the Federal Court;
àHebeas corpus relief is locally more accessible through provincial superior courts; and
àHebeas corpus is not a discretionary remedy.
(e) Quo Warranto
-Under FCA s.18.1(a), the Federal Courts have the power to grant this against federal officeholders (i.e., remove them from public office).
-The Divisional Court may grant this against a person holding a provincial office.
Relief Available: Equitable Remedies:
-In addition to prerogative writs, both the Federal Courts (FCA, s.19(1)(a)) and the Divisional Court (JRPA s.2(1)) may award equitable relief in the form of an injunction or a declaration.
(a) Declaration
-This is simply a way for the court to state or declare a legal position (i.e., a party’s right under a statute, or declare a particular state invalid)
-A declaration is a flexible form of relief, and particularly when combined with other forms of relief available on a JR, it can be an effective remedy (i.e., court may declare a statute invalid and refer the matter back to an administrative tribunal to determine the parties’ rights in light of the court’s conclusion).
NOTE: unlike other forms of relief available for JR, a declaration can be issued against the Crown.
(b) Injunction
-Is an order that either restrains a public body from doing something or forces a public body to perform a particular act
-The effect is the same as either prohibition or mandamus.
-Injunctions cannot lie against the Crown (unless the order relates to s.24(1) Charter)
Relief Available: Interim Relief:
-Both the Federal Courts (FCA s.18.2) and the Ontario Divisional Court (JRPA s.4) have the power to make interim orders, including staying an administrative proceeding pending judicial review.
-This power is important because:
àAn administrative decision is not automatically stayed pending JR; and
àMany administrative tribunals do not have the power to stay their own decisions pending review.
-In cases where the tribunal has the power to stay its own decision, parties should apply to the tribunal for a stay before raising the issue to the courts.
-A stay of proceedings is generally granted where the applicant can establish that
àThere is a serious issue being tried;
àIrreparable harm will result if the matter is not stayed; and
àThe balance of convenience and the public interest favour granting a stay.
-The JRPA and the FCA use very broad language to describe the courts’ ability to make interim orders.
5.Evidence Admissible in a Judicial Review Proceeding:
-Usually, only evidence that was put before the administrative tribunal will be
admissible.
-It is also permissible to submit an affidavit describing the evidence that was before the tribunal
-In addition, extraneous evidence on an appearance of bias may also be admitted.
6.Standing:
-Refers to an individual, corporation, or group’s ability to participate as a party and apply for relief in a legal proceeding.
-Standing is generally restricted to entities whose rights or interests are directly affected and those who have participatory rights by virtue of a statute.
-The rationale for standing restrictions is based on the need to efficiently allocate scarce judicial recourses while ensuring that the court hears from those most directly affected by its decision.
-Standing often becomes an issue where the constitutionality of a statute is challenged by someone who is not directly affected by the law. Or when the matter is merely a public right and the applicant is no more affected than the general public.
-In Ontario, the JRPA is silent as to standing. Thus, standing is determined by common law.
-Federally, the common law principles have been codified by s.18.1(1) of FCA. Additionally, the Federal Courts have discretion to grant standing to parties not directly covered by s.18.1(1).
NOTE: s.18.1(1)states that an application for JR may be brought by “anyone directly affected” by the application for JR; or the A-G of Canada.
-In Ontario and at common law, a party has standing if is an “aggrieved person” or is directly prejudiced by the administrative action in question.
-Therefore, at common law and under s.18.1(1), the party seeking standing must show a genuine and direct interest in the matter.
NOTE: if parties do not have a right or statutory-based standing may be permitted to claim relief because the court recognizes that in circumstances generally related to constitutional or administrative law, it may be necessary or appropriate for parties who are not directly affected to participate in a proceeding. Thus, at the discretion of the court, parties may be accorded to “public interest standing”.
-Public interest standing is granted where the party seeking to participate in the proceeding can show on a balance of probability that
àThe matter raises a serious justifiable issue;
àThe party seeking standing has a sufficient and direct interest in the sisues raised; and
àThere is no other reasonable or effective way to bring the matter before the courts.
-This test applies where parties are seeking a remedy under s.52 of Charter, as well as in applications for JR.
-Public interest standing is not available when seeking relief under s.24(1) of Charter.
NOTE: The power to award standing is entirely discretionary
7.Notice of Constitutional Question:
- The A-Gs are entitled to participate in JR proceedings that relate to the constitutionality of a statute or of government action.
-Matters before the Ontario Divisional Court, NOTICE must be given to the A-G of Canada and of Ontario at least 15 days before the hearing (CJA s.109). If not given, court may refuse to consider the constitutional question or may refuse to grant the remedy requested.
-Matters before the Federal Courts, NOTICE must be given to the A-G of Canada and the A-G of each province at least 10 days before the hearing. No statute or regulation can be adjudged to be invalid, inapplicable, or inoperable unless the required notice is given (FCA s.57; FCA r.69)
8. Other Procedural Considerations:
-In both courts, the request for JR is brought by way of a NOTICE of application, where the applicant must indicate the grounds of review.
-The grounds of review are now enumerated in s.18.1(4) of FCA and in s.2 of JRPA.
-Both these statutes codify the grounds for review available at common law: error of jurisdiction, error of law, error of fact, and breach of procedural FAIRNESS.
Public Law – basic principles
· Public Law = The relationship between the individual and the state
· Public Law = includes administrative law, constitutional law, and criminal law.
Definition of Administrative Law:
-Checks and/or balances to control the exercise of delegated authority.
-A body of principles that govern the exercise of power granted by statute.
-The source of power determines whether the decision making is subject to administrative principles.
-The courts have the ultimate supervisory control over the exercise of power delegated by statute or regulation.
i.e. if the individual or body is acting within provincial jurisdiction, the superior court of the province supervises;
i.e. in the federal sphere, the Federal Court generally exercises supervisory control
Two Fundamental Elements of Administrative Law:
(1) The development of the duty of fairness (governing the procedure for decision-making)
(2) The pragmatic and functional approach to judicial review of the substance of the decision itself
NOTE: lawyers must understand and apply the principles of statutory interpretation when analysing a tribunal’s decision-making authority.
Delegated Decision-Making Power:
- Whether your client is applying for social benefits or for a zoning variance, or seeking a restaurant liquor licence, it is critical to examine what the decision-maker can do and how the decision-maker can do it.
The SOURCE of Delegated Decision-Making Power:
-This is STEP 1 for any administrative law analysis
-The primary source of a delegated power to decide is whether there will be:
a STATUTE or a REGULATION
-The source will indicate WHO can make a decision...?
i.e. cabinet, a minister, a government official, or a regulatory agency
-The source will also indicate WHAT decision-making power has been delegated...the nature of the delegated power varies considerably...
i.e. issuing a fishing license if certain info has been provided
(this is a limited delegated power. It has a purely administrative function with the absence of discretion).
i.e. seeing statutory language that permits a Minister to make decisions ‘in the public interest’
(this is a delegated power which exercised a very broad discretion)
IN ANALYZING HOW THE POWER IS TO BE EXERCISED, THERE ARE 2 ELEMENTS:
(1) THE PROCEDURE TO BE FOLLOWED BEFORE A DECISION IS MADE
(statute or regulation may specify procedural steps before a decision is made)
(2) THE SUBSTANTIVE STANDARDS TO BE APPLIED IN MAKING THE DECISION
(statute or regulation will usually set out the purposes for which a statutory power is to be exercised, any necessary preconditions before the decision can be made, as well as any factors to be considered in making the decision....how much deference?)
(see below)
-The source of the power will impose LIMITS on delegated decision-making. The LIMITS come from 2 other sources: the Constitution and the common law.
The Constitution:
-The Constitution places 2 kinds of LIMITS on delegated decision-making:
(a) A delegated decision-making power and the way it is exercised cannot contravene the Canadian Charter of Rights and Freedoms
(b) Because of the division of powers between Parliament and the provincial Legislatures, there are certain powers that a province or federal government cannot exercise because the power belongs exclusively to one jurisdiction or the other. i.e. Canada Mortgage and Housing Corp v Iness
The Common Law:
-The common law imposes LIMITS on the exercise of a delegated decision-making power. These fall into 3 categories:
(a) Procedural Limits
-The rules of natural justice centre on 2 elements:
àa person’s right to adequate NOTICE of the case to be met and a right to a HEARING or other FAIR procedure
àa person’s right to an UNBIASED decision-maker.
-In Ontario, the rules of natural justice have been codified in:
àThe Statutory Powers Procedure Act (SPPA)
-The SPPA only applies when the decision-maker is required to hold a hearing
So, the first step for a lawyer analyzing the content of a client’s procedural rights is to determine whether the SPPA applies?
If so, procedural rights are spelled out in the SPPA.
If not, procedural rights are imposed by the common law
NOTE: procedural rights imposed by common law will depend on the nature of the person’s right affected by that exercise.
NOTE: when the full array of natural justice rights (e.g. the right to the presence of a lawyer, to call witnesses, to cross-examine adverse witnesses) is not applicable, more limited rights of fairness are still applicable (e.g. the right to know the case to meet and the right to make a submission to an unbiased decision-maker)
(b) Jurisdictional Limits
-The decision-maker must operate within the power that has been delegated.
-The source of that power is the statute delegating the decision-making power
(c) Errors in Law
-For example, it is an error of law to base a decision on irrelevant factors
-For example, it is an error of law to fail to consider relevant factors
The CONTROL of the ORIGINAL Exercise of the Delegated Decision-Making Power:
-This is STEP 2 for any administrative law analysis
-If the client is somehow dissatisfied with the ORIGINAL decision and wants to challenge it, the lawyer must examine how the ORIGINAL exercise of the delegated decision-making power can be controlled (reversed, varies, set aside, ordered to be done again)
Statutory Reconsideration or Appeal Mechanisms:
-Again, the starting point is the statutory scheme.
-The statute will provide for some sort of appeal, review, or reconsideration mechanism
-Thus, one has to find a statutory provision permitting a challenge of the ORIGINAL decision.
-Obviously, different statutes provide different mechanisms.
EXAMPLES:
Residential and Tenancies Act, 2006.
An order of the Landlord and Tenant Board can be appealed to the Divisional Court, but only on a question of law and within 30 days.
Human Rights Code.
A party may request the Human Rights Tribunal to reconsider a decision “in accordance with the Tribunal rules.” The Tribunal’s rules restrict requests for reconsideration to final decisions. The Code provides that Tribunal decisions cannot be appealed.
Legal Aid Services Act, 1998.
An appeal lies to an area committee from an area director’s decision to issue a certificate or from the area director’s decision to cancel a certificate. A further appeal lies to the officer or employee of Legal Aid Ontario designated by the board of directors of Legal Aid Ontario.
AS A GENERAL PRINCIPLE, A PERSON IS EXPECTED TO EXHAUST ALL STATUTORY APPEAL OR REVIEW MECHANISMS BEFORE RESORTING TO THE COURTS BY WAY OF JUDICIAL REVIEW.
Judicial Review:
- The court’s control of delegated decision-making independently of any statutory authorization such as a right of appeal
-When the statutory mechanisms for challenging decisions have been exhausted...
...The next area for consideration is judicial review
-The courts will control delegated decision making by way of judicial review when the decision-maker has EXCEEDED THE LIMITS set out by the statutory scheme: limits imposed by the constitution, or limits imposed by common law.
Ø In Ontario, the procedure for judicial review is set out in:
à The Judicial Review Procedure Act (JRPA); and
àR.68 of Rules of Civil Procedure
-This means that applications for JR are brought in the Divisional Court
NOTE: There is NO statutory time limit for seeking JR in the JRPA. However, since the remedy on JR is discretionary, the doctrine of laches applies: a court may dismiss an application because of delay.
NOTE: Applications for JR can be brought not only to challenge decisions that have been made, but also, in appropriate circumstances to prohibit a decision from being made or to require that decision be made.
Ø Federally, the procedure for judicial review is set out in:
àThe Federal Courts Act
-In the Federal context, as in the provincial context, the specific statutory scheme will set out any appeal or reconsideration mechanisms.
-In contrast to the Ontario’s JRPA, the federal legislation attempts to codify the federal common law on administrative law remedies (i.e. by specifying which division of the court one seeks relief, specifying time frames for seeking relief, specifying the grounds on which relief may be sought or granted)
NOTE: The relief granted by courts on JR is very limited! With few exceptions, the courts will NOT substitute their decisions on the SUBSTANTIVE issue decided by the delegated decision-maker.
-What the court may do is, set aside the original decision and return the matter to the statutory decision-maker to be decided again.
PROCEDURAL Entitlements:
-Public officials and agencies must follow proper procedure in exercising their delegated decision-making power.
Step 1 – is to look at the applicable statutory scheme.
-The statute, regulations, or by-laws specify what notice is to be given and to whom, and may set out other procedural components (i.e. the right to call witnesses and to cross-examine).
-The statute may also indicate what kind of evidence is admissible. In Ontario, the second source of procedural rights is the SPPA.
-When a statute is silent as to procedure, and whether or not the SPPA applies, administrative law imposed certain requirements on decision-makers to ensure that people subject to government action receive a FAIR process...
Step 2 – is to look at 2 concepts:
-Natural Justice
-Fairness
-Martineau v Matsqui Institutional Disciplinary Board – where the court said that it ought not to seek to distinguish between these two concepts
Natural Justice:
-Apply to statutory decision-makers that are classified as “judicial” or “quasi-judicial” powers (as opposed to those that exercise “administrative” or “executive” powers)
Executive powers Administrative powers Quasi-judicial powers Judicial powers
3 6 8 10
-Prime Minister -Tribunal -Liquor Board -Court / Judge
-M.P -Right to.... -Right to...
-But has LESS -Much ‘right to’
‘right to’ powers than powers
Judicial power
*the numbers illustrate the amount of FAIRNESS / NATURAL JUSTICE each power has. 10 being the most power.
*The Minister of National Revenue v Coopers and Lybrand– SCC identified the factors to consider in determining whether a decision or order is one “required by law to be made on a judicial or quasi-judicial basis”.
àIs there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?
àDoes the decision or order directly or indirectly affect the rights and obligations of persons?
àIs the adversary process involved?
àIs there an obligation to apply SUBSTANTIVE rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?
“one must have regard to the subject matter of the power, the nature of the issue to be decided, and the importance of the determination upon those directly or indirectly affected thereby...”
o Natural Justice: Content
-The principle of Natural Justice have 2 main components:
(1) The Right to Be Heard
A party who has a right to be heard is entitled to prior NOTICE of the proceedings:
-NOTICE must be given early enough to allow a party to prepare the case, attend before the decision-maker, and make representations.
-NOTICE must be reasonable and provide sufficient info
-NOTICE must disclose the real intention of the proposed decision- maker; Re Central Ontario Coalition Concerning Hydro Transmission Systems et al. And Ontario et al.
NOTICE also goes beyond initial notification of the hearing.
-A party is entitled to know “the case to meet”
-A tribunal cannot rely on evidence provided to it without giving NOTICE to affected parties and giving the parties a chance to respond to the evidence.
The form of the “hearing” will vary, depending on the context.
-May be oral hearing
-May be restricted to written submissions
-May be open to the public or private
(2) An Impartial Decision-Maker
-A decision-maker must not have a pecuniary interest in the outcome of the process, nor demonstrate a lack of impartiality or neutrality through comments or conduct.
-Administrative law principles provide that a decision-maker MUST BE FREE OF A REASONABLE APPREHENSION OF BIAS.
-Test framed in Committee for Justice and Liberty v National Energy Board
“What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly”
-In C.U.P.E v Ontario (Minister of Labour) - it was held that the test should NOT be directed to the subjective perspective of one of the parties but to the reasonable detached and informed observer.
(i) Apprehension of Personal Bias
-May arise because of the identity of the decision-maker (where the decision-maker is also party in another similar case).
-But successful allegations of perception of personal bias are rare
(ii) Institutional Bias
-Allegations made not because of decision-makers identity, but because of perceived institutional bias
-Here, a detailed examination of the statutory scheme is required to see whether a claim to NATURAL JUSTICE is precluded by the statutory language and scheme. And legislation may authorize certain forms of “institutional bias”
-The focus is on whether it is arguable that the decision-making tribunal has arrived at a preliminary judgement BEFORE starting its hearing process;
Re W.D. Latimer Co. Ltd and Bray where the statutory scheme permitted commission members to be present at meetings where investigations were discussed, even though the same members later sat as decision makers.
-The extent of involvement in the various aspects of a commission’s different functions may give rise to an apprehension of bias
Gardner v Ontario (Civilian Commission on Police Services) where the commission had various functions, the court found a reasonable apprehension of bias in having those members adjudicate (deliver judgment), noting that the Act is flexible and would readily permit separation of members for investigation and adjudication.
-The statutory scheme for the appointment of decision-makers may prevent an argument that the decision-maker is not “independent”, as required by the rules of NATURAL JUSTICE
Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch) where the SCC notes that like all principles of NATURAL JUSTICE, the degree of independence required of tribunal members may be ousted by express statutory language.
-Institutional practices such as internal consultation, may give rise to claims of an apprehension of bias or lack of independence
Ellis-Don Ltd. v Ontario (Labour Relations Board) where the SCC recognized that institutional consultation ensures consistency in the decisions of an administrative body and does not create an apprehension of bias or lack of independence if the following rules are respected:
--the consultation proceeding cannot be imposed by a superior level authority within the administrative hierarchy;
--the consultation must be limited to questions of policy & law;
--even on questions of law and policy, the decision-makers must remain free to make their own decision.
(iii) The Source for the Claim of an Apprehension of Bias
-The an adjudicator thinks that personal circumstances might give rise to an apprehension of bias, the adjudicator will disclose the facts to the parties.
-Also, there may be comments made by the decision-maker outside of the particular proceeding or hearing.
-The test for apprehension of bias is whether the official is still capable of being persuaded or had expressed a final opinion that could not be changed.
-Public statements expressed by a tribunal member during or after the hearing may form the basis of a claim of a reasonable apprehension of bias.
-Finally, a reasonable apprehension of bias may be based on the reasons for the administrative decision;
*Baker v Canada (Minister of Citizenship and Immigration) where the SCC concluded that the immigration officer’s notes were the basis of a reasonable apprehension of bias.
-Actual bias or reasonable apprehension of bias on the part of the decision-maker renders the decision void
-An allegation should be raised before the decision-maker at the outset of the hearing or as soon as circumstances are known.
-In this situation, the lawyer should bring a motion seeking that the tribunal rescue itself before any further proceedings are held.
-A court might find that a party has waived the tight to allege bias by participating in the tribunal hearing process without objecting after knowing the circumstances.
Fairness:
-The principles of NATURAL JUSTICE apply when a decision is required to be made on a “judicial” or “quasi-judicial” basis
-However, there are a number of decisions of public officials and regulations that cannot be characterized as “judicial” or “quasi-judicial”.
-The principles of NATURAL JUSTICE often require trial-like procedures, are overly formal and inappropriate for the exercise of many public powers.
-THEREFORE, the concept of FAIRNESS arose as a result of these factors.
-Through the doctrine of FAIRNESS, courts can assess the procedural adequacy of decisions made by public officials (even though the decisions are not made in accordance with the principles of NATURAL JUSTICE).
*Re Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police where the SCC held that Nicholson, a probationary officer, was entitled to some procedural protection after being dismissed from employment without being told why or having an opportunity to explain himself, “He should be treated ‘fairly’ not arbitrarily”.
-FAIRNESS aims to ensure that a person has the opportunity to advise the decision-maker before the decision is made of any relevant fact or argument that should be known for the decision-maker to reach a rational conclusion.
-The pre-decision right to FAIRNESS comprises of 2 elements:
(1) The right to know the case to meet;
(2) The right to make submissions to the decision-maker
Also, FAIRNESS may require that the decision-maker provide reasons for the decision.
NOTE: if those elements of FAIRNESS are in the decision-making process, courts are reluctant to be involved in mandating specific procedural steps or codes
Knight v Indian Head School Division No.19
“...every administrative body is the master of its own procedure and need not assume the trappings of the court. The objective is to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair”
-Thus, the real issue is to see whether the procedural safeguards are sufficient to provide a fair decision in the particular circumstances. The inquiry should examine whether all of the circumstances, the person whose interests are affected had a meaningful chance to present one’s case and have it considered by the decision-maker.
o Fairness: Factors Affecting the Content of the Duty of FAIRNESS
In Baker, the SCC outlined criteria to use in determining what procedural rights the duty of FAIRNESS requires in a given set of circumstances:
(i) The Nature of the Decision Being Made:
The more procedural rights provided for by the process, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision-making, the more likely it is that procedural protections closer to the tribunal model will be required by the duty of FAIRNESS.
(ii) The Nature of the Statutory Scheme and the Terms of the Statute Pursuant to which the Body Operates:
Greater procedural protections will be required when no appeal procedure is provided within the statute or when the decision is determinative of the issue and further requests cannot be submitted.
But when the decision is NOT “determinative”, lesser procedural protection is called for.
i.e. when preliminary administrative process is investigatory or leads only to a recommendation and a right to a hearing occurs later in the process, a party’s procedural rights may be limited to receiving written disclosure of the substance of the investigation and having an opportunity to make a written submission. The parties would have full participatory rights at the hearing later in the legislative scheme.
(iii) The Importance of the Decision to the Individual or Individuals Affected:
For example, when the decision will affect one’s employment (as in Nicholson) or the right to continue in a profession, higher procedural safeguards will be required.
Even when the decision under review is “legislative”, such as the passing of a by-law (usually calling for the lowest form of procedural rights), the SCC has held in Homes Realty and Development Co. v Wyoming (Village) that a party will be entitled to FAIRNESS because the decision affects property rights.
One also sees a distinction between procedural rights when a decision is made to cease providing a benefit, as opposed to granting a benefit in the first place. In Re Webb and Ontario Housing Corporation, the court held that a tenant was entitled to FAIRNESS when her lease was being terminated, but noted that a decision not to grant a tenancy could have been made without any procedural protection.
NOTE: a claim to FAIRNESS does not require that a “right” be affected by a statutory decision. The development of the doctrine of fairness calls for procedural protection even when it is a person’s “interest” rather than a right that is affected by the decision.
(v) The Legitimate Expectations of the Person Challenging the Decision:
The circumstances affecting procedural FAIRNESS take into account the promises or regular practices of administrative decision-makers. It will generally be unfair for them to act in contravention of representations as to procedure or to backtrack on substantive promises without according significant procedural rights.
NOTE: the doctrine of “legitimate expectations” gives procedural right ONLY. One cannot claim a right to a particular result or outcome.
(vi) The Choices of Procedure Made by the Agency to the Decision-Maker the Ability to Choose its own Procedures or when the Agency has an Expertise in Determining what Procedures are Appropriate in the Circumstances:
Again, this factor (like the others) is not determinative, but courts will give weight to the choice of procedures made by the agency itself and its institutional constraints.
(vii) The Influence of Charter Principles on Procedural Protection:
The development of Charter jurisprudence has also helped to ensure that appropriate procedural protection pervades public law decisions. In R v Caleddu, the court held that a parole board could not revoke a person’s parole without holding an oral hearing. Although the principle of FAIRNESS did not call for such a hearing, s.7 of Charter, providing for 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,” did require such a hearing before parole was revoked.
SUBSTANTIVE Review of the Decision:
-The core of judicial review is examining the extent to which courts will set aside decisions made by statutory decision-makers.
-Statutory decision-makers must act within the scope of the powers given to them by the legislative scheme otherwise; they are acting outside their jurisdiction (ultra vires)
-It is inappropriate for courts to intervene in the substance of public decision-making that is otherwise legal.
-In Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp., the SCC signalled the development of the modern approach to judicial review of the substance of the impugned decisions made by statutory decision-makers: a general policy of judicial restraint.
-Following this, two subsequence decisions of the SCC have had a major impact on the modern approach to judicial review:
U.E.S Local 298 v Bibeault and
Pushpanathan v Canada (Minister of Citizenship and Immigration)
Briefly, the pragmatic and functional approach to judicial review calls for a 2-step approach:
(1) Determine the appropriate standard of review for the particular element of the decision; and
(2) Scrutinize that element of the decision using the appropriate standard of review.
-In Voice Construction Ltd. v Construction and General Workers’ Union, Local 92, the SCC emphasized that, “Only AFTER the standard of review is determined, can the administrative tribunal’s decision be scrutinized”.
-In *Dunsmuir v New Brunswick (2008), the SCC decided that there are only two common law standards of review: CORRECTNESS and REASONABLNESS.
(combined ‘reasonable simpliciter’ and ‘patent unreasonableness’ into reasonableness, and left correctness the same).
-Further, the SCC’s 2009 decision in *Canada (Citizenship and Immigration) v Khosa held that, when the standard of review is defined as patent unreasonableness, the legislature is calling for DEFERENCE if the decision is reviewed.
NOTE: Deference is called for when the standard of review is patent unreasonableness and/or when it is reasonableness. And Khosa suggests that from a practical perspective, decisions will receive the same sort of deference, whether the standard is reasonableness or a statutorily set as patent unreasonableness. (patent = obvious)
-Administrative law errors, that permit judicial intervention, fall into the following categories:
àstatutory preconditions to the exercise of public powers must be met before their exercise;
àa decision must be made on the basis of relevant considerations, relevancy being determined primarily by reference to the governing legislation. Reliance upon an irrelevant consideration or the failure to consider relevant ones are equally erroneous;
àpublic powers may not be exercised for purposes other than those for which the owners were granted;
àa public decision-maker may not bind itself of fetter its discretion by making general rules which apply to every case. Each case must be decided on its own merits, although the decision-maker may establish guidelines or general policies which assist but do not determine the decision-making process;
àpublic powers must not be exercised in bad faith;
àpublic powers must be exercised in accordance with the principles of NATURAL JUSTICE and FAINESS, where they apply;
àthere must be some evidence before a decision-maker to justify findings of fact;
àpublic powers must be exercised by those entrusted with them and may not be improperly delegated to others;
àpublic powers must not be exercised in violation of the Charter pr the Canadian Bill of Rights;
àa decision must not be unreasonable.
In addition, the official or tribunal may run afoul of the appropriate standard of review in its interpretation of the governing or related legislation or common law principles applicable to the factual situation, or the application of those principles to the facts.
-As a GENERAL RULE: even when such an administrative law error is found, the courts do NOT substitute their opinion for that of the decision-maker. In most cases, the matter will be remitted to the decision-making body to be re-determined “in accordance with the law”.
Practice Before Administrative Tribunals
-As the administrative tribunal is a creature of statute, some aspects of the preparation and conduct of the hearing differ from trial preparation, most notably in motion practice before the tribunal.
Material to Examine Before the Hearing Starts:
Legislation:
-The legislation that creates the statutory decision-making is the central focus of the lawyer’s analysis because statute will govern what decisions can be made and by whom, and indicate what kind of evidence is relevant by identifying the factors to be considered by the tribunal in making its decision.
-Legislation may indirectly affect a party’s procedural rights
Regulation:
-In a number of situations, the tribunal’s power may be prescribed, expanded, or restricted by the applicable regulations.
-Some tribunals have powers set out in their by-laws.
Rules:
-s.25.1 of SPPA permits tribunals to make rules of general or particular application.
-Some tribunals have established rules, even without explicit statutory authority as provided by the SPPA.
i.e. s.17.1 of SPPA permits tribunals to order a party to pay all or part of another party’s costs if they have made rules in that regard under s.25.1 of SPPA. This power to award costs may be exercised unless the conduct or course of conduct of a party has been unreasonable, frivolous, or vexatious, or a party has acted in bad faith. The rules made under s.25.1 may include the circumstances in which costs may be ordered and the amount of the costs or the manner in which the amount of costs is to be determined.
Policy and Practice Directions:
-A tribunal may have published a policy or policies or practice directions. Alternatively, a minister responsible may be authorized by the applicable legislation to issue policy guidelines. The lawyer’s readings of the statute will show whether the minister has that power.
Tribunal Decisions:
-Advances in information technology make it much easier and less time consuming to find prior tribunal decisions.
Application of the SPPA:
-To determine whether the SPPA applies to the tribunal’s proceeding, one should:
à Examine whether the tribunal is expressly excluded from the SPPA by the statute creating the tribunal or by s.3(2) of SPPA, which excludes certain tribunals; and
à Examine s.3(1) of SPPA to see whether the tribunal is required by statute or “otherwise by law” to afford the parties a hearing before making a decision.
THEREFORE
If the statute provides for a hearing, then the criterion is met.
If the statute is silent, then one has to turn to the principles of NATURAL JUSTICE and FAIRNESS to see whether the common law requires that a hearing be held.
NOTE: the tribunal must be exercising a “statutory power of decision.” The decision-maker must be authorized by statute to make the decision in question.
Operation of the SPPA:
-Some of the important features of SPPA are:
-s.25.1 – tribunal makes own rules
-s.5 – provides for written or electric hearings
-s.9 – oral hearings may be open to the public, subject to exceptions
Parties’ Rights
-s.10 – provides that a party may be represented by a lawyer or an agent.
-s.10.1 – participatory rights of the parties
-A party to a proceeding may conduct a cross-examination of witnesses, but this is limited by s.10.1(b) and s.23
Witness’ Rights:
- s.11 – witness has a right to advice from a counsel or agent, but counsel or agent cannot participate in hearing without leave of tribunal
-s.14 – protects witness whose answers at a hearing may incriminate them
Evidence – Admissibility:
-The SPPA has relaxed the threshold for the admission of evidence. See s.15(1), (2), and (3)
-s.16 – allows tribunals to take a broader judicial notice of facts
Motions:
-Motions brought before the courts generally relate to procedural matters and the details of motion procedure are laid out in the rules.
-Conversely, many tribunals have a policy-making role; they do more than just apply the law to the facts.
-A motion brought before a tribunal will be adjudicated not only on the basis of the facts and the law, but also on public policy considerations.
-Additionally, the purpose of many tribunal proceedings is to have an adjudicative system that is faster and less procedurally formal than court proceedings.
-Further, the detail of motion procedure before tribunals and the possible relief to be obtained by motion are not as easy to ascertain as they are in the Rules of Civil Procedure.
-Tribunals the ability to make interim orders or decisions. See s.16.1 of SPPA
-The tribunal’s rules may address the procedure for bringing a motion. If they do not, the lawyer should consider whether to advise the tribunal in advance that a motion will be brought.
NOTE: bringing a motion, and succeeding, will allow the lawyer to seek judicial review.
NOTE: Tribunals have NO inherent jurisdiction. Their powers are set out in their enabling legislation or in the SPPA. Thus, the lawyer needs to find a legislative basis for any relief sought by way of motion.
Alternative Dispute Resolution (ADR)
-The adjudicative system is not the only procedure for resolving disputes.
-ADR, originally designed to be a fast and less formal then court processes, have
become beneficial in administrative law proceedings as well as in civil litigation.
-ARD includes mediation, conciliation, negotiation, or any other means of facilitating the resolution of the issues in dispute.
-s. 4.8 SPPA – permits tribunals, if they have made rules under s.25.1 respecting ADR and if the parties consent, to direct the parties to participate in ADR.
-Under s.4.8(3), tribunal rules respecting ADR must include guidelines dealing with situations when
à tribunal approval of the resolution is required; and
à a tribunal order is required by statute or otherwise
NOTE: ADR will lead to a resolution only if the parties enter into the ADR process voluntarily, with a view to making a good faith effort to reach a solution.
Judicial Review of Administrative Action
Definition of Judicial Review:
-The courts have supervisory jurisdiction over administrative decision-makers (the actions of public tribunals, boards, officers, and public decision-makers)
-JR is the means by which courts supervise those who exercise statutory or administrative powers in order to ensure that they do not overstep their legal authority.
-On application from a party, the courts may review administrative decisions and, at their DISCRETION, intervene where they find the decision exceeds the decision-maker’s statutory mandate or breaches principles of PROCEDURAL FAIRNESS.
-In some situations, the courts may also intervene where the decision-maker has committed an error of law or of fact.
Difference between Appeal and Judicial Review:
Appeal
Judicial Review
The right to an appeal is a statutory right which flows from some legislative instrument.
JR is generally available in a public law context; the right to JR need NOT be set out in a statute.
JR is a DISCRETIONARY remedy where the courts will usually refuse to review administrative action where a right of appeal exists and has not been exhausted.
The level of DEFERENCE accorded to the lower court depends on the nature of the issue under review.
In Housen v Nikolaisen SCC explained that the standard of appeal on question of law is one of CORRECTNESS. On question of fact, the appellate court will intercede where there is a “palpable and overriding error” plainly seen.
The standard of JR not only depends on whether the question is one of fact, law, or mixed fact and law, but also one a number of factors that the courts must consider when determining the level of DEFERENCE in a JR.
Courts have a very broad remedial jurisdiction on appeal. They can substitute their own decision for that of the tribunal or court appeals from and can generally order a broad range of remedies.
The courts’ remedial jurisdiction is limited to the powers set out in the applicable statutes: Federal Courts Act (FA)
Judicial Review Procedure Act (JRPA)
Also, in a JR, the courts cannot award damages; only costs.
Jurisdiction of the Courts to Review Administrative Action:
-There are 2 venues in which a JR can be pursued in Ontario:
(A) Provincially, before the Ontario Divisional Court
-JR of administrative decisions of Ontario bodies or tribunals is governed by: àJudicial Review Procedural Act (JRPA) and
àRules of Civil Procedure (Rules)
(B) Federally, before the Federal Courts
-The review of federal administrative action falls under:
àFederal Courts Act (FCA) and
àFederal Courts Rules (FCR).
Jurisdiction:
-The appropriate venue for a JR depends on the nature of the decision under review.
(A) Ontario Divisional Court = has jurisdiction to review decisions of bodies exercising statutory powers of decisions conferred upon them by an Ontario statute(but they cannot review acts of federal bodies). The JRPA defines “statutory power of decision” to include the powers of an inferior court. Thus, decisions of inferior courts are reviewable by the Divisional Court (JRPA, s.1)
(B) Federal Courts = may review any authority exercising powers conferred by a federal statute or order (FCA, s.2(1)). Thus, the Federal Courts have exclusive jurisdiction to review decisions, orders, and other administrative actions of all federal boards, commissions, or other tribunals (FCA ss.18.1 and 28)
NOTE: both these courts are statutory courts, so all their powers must derive from statue.
-There are 2 instances where the Ontario Superior Court (different jurisdiction from Ontario Divisional Court) can review the acts of federal bodies:
[1] The inherent jurisdiction to make declarations regarding the constitutionality of federal legislation or its application as well as matters relating to the Charter. Thus, the superior courts can declare that a statute or federal tribunal’s application of a statute is in breach of the constitution of the Charter, just like the Federal Courts.
[2] While Federal Courts have jurisdiction to issue mist of the traditional prerogative writs as well as the equitable remedies, its power to issue hebeas corpus is limited by the FCA to cases involving members of the Canadian Forces serving outside Canada. Thus, writs of hebeas corpus against any other class of individuals fall within the jurisdiction of the provincial superior courts. Also, provincial superior courts may quash or set aside a decision of a federal board.
General Principles:
-The following principles are relevant to both federally and provincially conducted judicial reviews:
1.The Availability of Judicial Review:
-Not every decision is subject to JR.
àOnly PUBLIC action or decision-making can be judicially reviewed (FCA s.2(1); JRPA, s.1). Thus, private action (like a private corporation’s decision to terminate an employee) cannot be subject to JR, only subject to a lawsuit.
àOnly the actual exercise of, or the failure to exercise statutory powers can be judicially reviewed (FCA s.2(1); JRPA, s.1).
àOnly decisions with some element of finality will be reviewed.
2.Standard of Review:
-This refers to the level of DEFERENCE the courts show to the administrative decision-maker.
-In a JR, the determination of the standard of review is a threshold question: the level of DEFERENCE applied is often determinative of the outcome of the case.
-The SCC regularly overhauls its approach to determining the standard of review. The most recent overhaul took place in 2008 in *Dunsmuir v New Brunswick.
-Dunsmuir has brought 2 important changes:
(1) It has narrowed the number of standard of review to two, by collapsing the two previous variants or reasonableness (‘reasonableness simpliciter’ and ‘patent unreasonableness’) into one.
(2) It has revamped the test for determining the standard of review, focusing on the nature of the question before the administrative tribunal.
Therefore, there are now 2 standards of review defined:
(1) Reasonableness
-The SCC recognizes that there can be more than one reasonable or acceptable answer that comes before administrative decision-makers.
-For the purposes of JR, a decision is “reasonable” if it falls within a range of acceptable answers and is accompanied by the requisite level or procedural fairness.
-Thus, even when reviewing on the standard of reasonableness, courts should only intervene if:
a) The decision in question is not within the range of defensible solutions; or
b) The decision-making process involves a breach of procedural fairness.
(2) Correctness
-The courts do NOT show DEFERENCE to the original decision maker, but rather, undertake their own analysis.
-A reviewing court applying the standard of correctness will NOT tolerate error and will intervene unless the impugned decision is correct.
Standard of Review: Determining the Appropriate Standard of Review
-Under Dunsmuir, the standard of review is determined by: (pg21)
1. Categorizing the nature of the issue faced by the administrative decision-makers
2. Use existing jurisprudence (existing case law) to identify the standard of review that corresponds to that category of issue.
Where no existing jurisprudence addresses the question, the SCC directs us to consider a number of factors to determine what standard of review applies:
(a) Categorizing the Nature of the Decision
-How are we to characterize the issues within the decision and determine whether a case presents a question of law, fact, mixed fact and law, policy, or discretion?
-Dunsmuir focuses on identifying the nature of the question.
Thus, step 1 = determine if its question of law, mixed fact and law, policy, or discretion
(b) Existing Jurisprudence
-Dunsmuir suggests that we should be guided throughout this analysis by existing jurisprudence.
-Once the nature of the question is categorized, the next step is to look to existing case law to determine what standard has been applied to that given category.
-The SCC has provided some guidelines based on existing jurisprudence.
The following categories of decisions will attract a STANDARD OF REASONABLENESS
o Question of fact;
o Exercising of discretion;
o Policy questions;
o Questions of mixed fact and law;
o An administrative decision-maker interpreting its enabling statute as it relates to its functions; and
o Issues of general law applied in a context where the decision-maker has particular expertise (i.e. in the labour law context)
The following categories of decisions will attract a STANDARD OF CORRECTNESS:
o Constitutional questions, including those relating to the division of powers;
o Questions directly to the administrative decision-maker’s jurisdiction and the scope of his or her powers or authority; and
o Issues of general law that fall outside the administrative decision-maker’s area of expertise (i.e. the interpretation of a statute of general application);
o Question of law
Thus, step 2 = look at existing case law to determine what standard of review (reasonableness or correctness) has been applied to the given category from step 1.
(c) Factors to Consider
-Where there is NO clear jurisprudence addressing the standard or review, the SCC directs us to consider the decision-making context and 4 factors:
(i) Privative Clause
· This is a provision in a tribunal or administrative decision-maker’s enabling statute which attempts to limit or exclude judicial review of that body’s administrative action. This will often include language such as “the tribunal’s decision is final and conclusive”.
· Although a privative clause (particularly a strong or full clause) is suggestive of a high level of DEFERENCE, it will not necessarily insulate the tribunal from JR
· The existence of a statutory right of appeal regarding an administrative decision is suggestive of a more exacting standard of review. But a court may refuse judicially reviewing an administrative decision until statutory rights of appeal have been exhausted.
(ii) Tribunal’s Expertise
· Pertains to both questions of law and fact and refers to the relative experience of knowledge of the tribunal compared to that of the court. It also relates to the composition of the tribunal and to its mandate.
· The more knowledge or expertise on a specific subject matter the tribunal has, the more DEFERENCE is given by the court.
· Thus, where the courts share the same competence and experience in a particular area as the tribunal, the less DEFERENTIAL standard may be given.
(iii) The Purpose of the Tribunal and its Enabling State
· The courts will consider the ORIGINAL decision-maker’s role and purpose as conferred in the empowering statute.
· Where the statutory scheme or the questions under review relate to principles of general law and are of importance to the legal system as a whole, the administrative decision will be reviewed at a more exacting standard.
· Where the scope of the administrative decision-making is broad and could have wide repercussions, the courts will be more included to intervene to ensure consistency and fairness.
(iv) The Nature to the Question
· This requires courts to review the nature of the particular issues raised in the JR.
· Dunsmuir suggests that the nature of the question is relevant to 2 different stages of the standard of review: (pg20)
1. Determine the nature of the question and then compare it to the initial jurisprudence in order to determine the standard of review
2. The relevant factor (including i, ii, iii) at the final stage of analysis. NOTE: Where the decision has been characterised, but NO jurisprudence satisfactorily determines the appropriate standard of review, the nature of the question forms part of the contextual test to determine the standard of review
Summary of the Dunsmuir Test:
STEP 1 = Determine the nature of the question.
Is it a question of fact, law, mixed law and fact, or policy, or an exercise of discretion?
STEP 2 = Based on the nature of the question:
Does the existing jurisprudence “satisfactorily” point to a standard of review?
STEP 3 = If there is no helpful jurisprudence, perform a contextual analysis and consider the following factors:
The existence or absence of a privative clause,
The relative expertise of the decision-maker,
The enabling statute, &
The nature of the question
3.Discretionary Bars to Judicial Review:
-The courts’ supervisory jurisdiction over administrative tribunals is a discretionary power, and despite JR, the courts may refuse to exercise their supervisory jurisdiction or to grant relief.
-There are circumstances in which the courts will refuse to exercise their discretion.
-The following are examples of circumstances where courts may refuse to exercise their discretion even in cases where the JR has merit:
àThe parties have failed to exhaust adequate alternative remedies, such as a right of appeal or reconsideration;
àThere has been an unreasonable delay in bringing the application for JR, particularly where the delay may have prejudiced the other parties;
àThe issues raised in the application for JR are hypothetical, moot, or not justifiable (i.e., are of a purely political, moral, or ethical nature);
àThe application is premature; and
àThe errors raised are too minor or trivial to warrant judicial intervention.
NOTE:
s.2 of JRPA = on an application for JR, the Ontario Divisional Court may grant relief despite any right of appeal.
Conversely, s.18.5 of FCA = bars JR by the Federal Courts where a statutory right of appeal exists. Thus, where a trial de novo (a retrial), a stated case, or a statutory appeal is available, the Federal Courts CANNOT also conduct a JR.
-It is important to consider whether the decision in question is actually subject to appeal.
-JR is only barred for those issues that can be raised on appeal.
4.Relief Available:
-The power of the court conducting a JR are set out in s.2 of JRPA in the case of the Ontario Divisional Court.
-The power of the court conducting a JR are set out in s.18.1 of FCA in the case of the Federal Courts.
-These statutes codify the prerogative writs that had been available at common law
-With the exception of costs, relief can ONLY be granted against the tribunal under review.
-Neither court may award damages on a JR. They are able to award costs between parties (CJA, s.131; FCR, r.400).
Relief Available: The Prerogative Writs:
-Where a JR is available, the Federal Courts and Divisional Courts may order prerogative remedies against tribunals within their respective jurisdictions.
(a) Mandamus
-Is used to compel the performance of a legal duty.
-Both the Federal Courts (FCA, s.18.1(3)) and the Divisional Court (JRPA, s.2(1)) may order a tribunal, actor, or decision-maker to perform a duty it has unlawfully failed to do or has unreasonably delayed in doing.
-An order in mandamus is appropriate where the party requesting the order has a clear right to the performance of a public or statutory duty and, although that party has demanded the duty be performed, the public body has refused to act.
(b) Certiorari
-Is the power to quash or set aside the decision of an administrative actor.
-Both the Federal Courts and the Divisional Court (JRPA, s.2(1)) can set aside a decision of the grounds that the tribunal committed an error of law or an error of fact, failed to observe a principle of NATURAL JUSTICE, or rendered a decision exceeding its jurisdiction.
-Although the courts may quash, they may NOT substitute their own decision for that of the tribunal.
-The courts will generally refer the matter back to the administrative decision-maker for determination, but specify that it go before a differently constituted tribunal. OR the courts may remit the matter back with directions (i.e. by clarifying a procedural issue before the tribunal or explain why a particular SUBSTANTIVE issue was incorrectly determined).
(c) Prohibition
-The Federal Courts (FCA s.18.1(3)) and the Divisional Court (JRPA, s.2(1)) may prohibit or restrain a decision, act, or proceeding of a public body.
-Can be used to prevent a decision-maker from acting if their conduct would give rise to a reasonable apprehension of bias. Or it can be used to prevent a tribunal from continuing proceedings that constitute an improper use of its jurisdiction.
-Thus, prohibition is the mirror image of mandamus.
-But instead of forcing the tribunal to act (mandamus), prohibition restrains the tribunal from acting.
-While certiorari is only available after decision was made, prohibition, like mandamus, is sought before a final decision is made.
(d) Hebeas Corpus
-Is a remedy available to persons detained or imprisoned and requires the person or entity detaining the applicant to produce the applicant before the court, and justify his or her detention.
-This is to cause the JR of the decision-making process of prison officials which impose more restrictive confinement measures upon inmates.
-This is not a discretionary remedy.
-A remedy must be granted where the applicant shows that his or her detention is without legal rounds.
-s.18 of FCA gives the Federal Court exclusive jurisdiction to issue hebeus corpus in relation to any member of the Canadian Forces serving outside of Canada. But where the Federal Courts does not have jurisdiction, provincial superior courts can issue hebeas corpus.
-The SCC found that, despite s.18, provincial superior courts also have jurisdiction to issue certiorari in aid of hebus corpus to review the validity of a detention imposed by a deferral authority. In arriving at this conclusion, the SCC considered these factors:
àThe fact that in the prison context, applicants have a choice of 2 venues (provincial superior courts, or Federal Court);
àWhile the Federal Court has greater expertise in federal administrative law, the provincial superior courts are equally well-versed in the applicable Charter principles;
àA hebeas courpus hearing may be more rapidly available before provincial superior courts than before the Federal Court;
àHebeas corpus relief is locally more accessible through provincial superior courts; and
àHebeas corpus is not a discretionary remedy.
(e) Quo Warranto
-Under FCA s.18.1(a), the Federal Courts have the power to grant this against federal officeholders (i.e., remove them from public office).
-The Divisional Court may grant this against a person holding a provincial office.
Relief Available: Equitable Remedies:
-In addition to prerogative writs, both the Federal Courts (FCA, s.19(1)(a)) and the Divisional Court (JRPA s.2(1)) may award equitable relief in the form of an injunction or a declaration.
(a) Declaration
-This is simply a way for the court to state or declare a legal position (i.e., a party’s right under a statute, or declare a particular state invalid)
-A declaration is a flexible form of relief, and particularly when combined with other forms of relief available on a JR, it can be an effective remedy (i.e., court may declare a statute invalid and refer the matter back to an administrative tribunal to determine the parties’ rights in light of the court’s conclusion).
NOTE: unlike other forms of relief available for JR, a declaration can be issued against the Crown.
(b) Injunction
-Is an order that either restrains a public body from doing something or forces a public body to perform a particular act
-The effect is the same as either prohibition or mandamus.
-Injunctions cannot lie against the Crown (unless the order relates to s.24(1) Charter)
Relief Available: Interim Relief:
-Both the Federal Courts (FCA s.18.2) and the Ontario Divisional Court (JRPA s.4) have the power to make interim orders, including staying an administrative proceeding pending judicial review.
-This power is important because:
àAn administrative decision is not automatically stayed pending JR; and
àMany administrative tribunals do not have the power to stay their own decisions pending review.
-In cases where the tribunal has the power to stay its own decision, parties should apply to the tribunal for a stay before raising the issue to the courts.
-A stay of proceedings is generally granted where the applicant can establish that
àThere is a serious issue being tried;
àIrreparable harm will result if the matter is not stayed; and
àThe balance of convenience and the public interest favour granting a stay.
-The JRPA and the FCA use very broad language to describe the courts’ ability to make interim orders.
5.Evidence Admissible in a Judicial Review Proceeding:
-Usually, only evidence that was put before the administrative tribunal will be
admissible.
-It is also permissible to submit an affidavit describing the evidence that was before the tribunal
-In addition, extraneous evidence on an appearance of bias may also be admitted.
6.Standing:
-Refers to an individual, corporation, or group’s ability to participate as a party and apply for relief in a legal proceeding.
-Standing is generally restricted to entities whose rights or interests are directly affected and those who have participatory rights by virtue of a statute.
-The rationale for standing restrictions is based on the need to efficiently allocate scarce judicial recourses while ensuring that the court hears from those most directly affected by its decision.
-Standing often becomes an issue where the constitutionality of a statute is challenged by someone who is not directly affected by the law. Or when the matter is merely a public right and the applicant is no more affected than the general public.
-In Ontario, the JRPA is silent as to standing. Thus, standing is determined by common law.
-Federally, the common law principles have been codified by s.18.1(1) of FCA. Additionally, the Federal Courts have discretion to grant standing to parties not directly covered by s.18.1(1).
NOTE: s.18.1(1)states that an application for JR may be brought by “anyone directly affected” by the application for JR; or the A-G of Canada.
-In Ontario and at common law, a party has standing if is an “aggrieved person” or is directly prejudiced by the administrative action in question.
-Therefore, at common law and under s.18.1(1), the party seeking standing must show a genuine and direct interest in the matter.
NOTE: if parties do not have a right or statutory-based standing may be permitted to claim relief because the court recognizes that in circumstances generally related to constitutional or administrative law, it may be necessary or appropriate for parties who are not directly affected to participate in a proceeding. Thus, at the discretion of the court, parties may be accorded to “public interest standing”.
-Public interest standing is granted where the party seeking to participate in the proceeding can show on a balance of probability that
àThe matter raises a serious justifiable issue;
àThe party seeking standing has a sufficient and direct interest in the sisues raised; and
àThere is no other reasonable or effective way to bring the matter before the courts.
-This test applies where parties are seeking a remedy under s.52 of Charter, as well as in applications for JR.
-Public interest standing is not available when seeking relief under s.24(1) of Charter.
NOTE: The power to award standing is entirely discretionary
7.Notice of Constitutional Question:
- The A-Gs are entitled to participate in JR proceedings that relate to the constitutionality of a statute or of government action.
-Matters before the Ontario Divisional Court, NOTICE must be given to the A-G of Canada and of Ontario at least 15 days before the hearing (CJA s.109). If not given, court may refuse to consider the constitutional question or may refuse to grant the remedy requested.
-Matters before the Federal Courts, NOTICE must be given to the A-G of Canada and the A-G of each province at least 10 days before the hearing. No statute or regulation can be adjudged to be invalid, inapplicable, or inoperable unless the required notice is given (FCA s.57; FCA r.69)
8. Other Procedural Considerations:
-In both courts, the request for JR is brought by way of a NOTICE of application, where the applicant must indicate the grounds of review.
-The grounds of review are now enumerated in s.18.1(4) of FCA and in s.2 of JRPA.
-Both these statutes codify the grounds for review available at common law: error of jurisdiction, error of law, error of fact, and breach of procedural FAIRNESS.