- Home
- Constitutional - Index
- Constitutional Law1
- Constitutional Law2
- Professional Responsibility - Index
- Professional Responsibility
- Criminal Law - INDEX
- Criminal Law
- Criminal Procedure - INDEX
- Criminal Procedure
- Criminal Procedure Glossary
- Foundations of Canadian Law - INDEX
- Foundations of Canadian Law
- Foundations.notes 2
- Foundations of Canadian Law.cases - INDEX
- Foundations of Canadian Law.cases
- Foundations of Canadian Law.articles - INDEX
- Foundations of Canadian Law.articles
- Administrative Law - INDEX
- Administrative Law
- Administrative.notes 2
- Administrative.notes 3
- Administrative Law.B - INDEX
- Administrative Law.B notes
- Admin Law. Quick Notes
Click here to edit APPLYING THE STANDARD OF REVIEW
INTRODUCTION
-In the preceding chapters on substantive review, we dealt with the extensive case law in which the SCC has forged the principles by which the appropriate standard of review is selected.
-...and in turn we see how these old standards were reshaped in Dunsmuir by its adoption of the new, unified standard of reasonableness.
-In this chapter, we sample a range of cases that illustrate how the two post-Dunsmuir standards of review – correctness and reasonableness – are applied in order to decide whether the administrative decision under review should be upheld, varied, overturned, or otherwise interfered with by a court.
-We pay particular attention to the reasonableness standard, which is not the same as wither reasonableness simpliciter or patent unreasonableness, but which also takes its meaning from past experiences with those standards.
-We first examine the standard of correctness
CORRECTNESS REVIEW
-When applying the correctness standard, Dunsmuir states that
“A reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct”
-As we see in Pushpanathan, when reviewing a legal question on a correctness standard, a court will carry out its own analysis of the statute or other legal instrument in order to arrive at an autonomous understanding of how silence or ambiguity should be resolved and how the legal standard should be applied.
Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998) 1 SCR 982
PRINCIPLE: When reviewing the LEGAL question on CORRECTNESS, The court will carry out its OWN analysis of the statute or other legal instruments to determine how the legal standard should be applied.
Facts: Appellant from Sri Lanka, claimed refugee status. Granted Permanent Residency. Convicted for conspiracy to traffic - 8yrs. Need IRB hearing to determine if excluded under 1F(c) of the 1951 Conv’n. Minister attempts to deport. Deportation of resident is conditional re: person not a Convention Refugee. IRB: not a CR (upheld at FCTJ and FCA).
Issues: How do the rules of treaty interpretation apply to the determination of the meaning of Article 1F(c) of the UN Refugee Convention? AND Does Pushpanathan's act of drug trafficking fall within the definition of "acts contrary to the purposes and principles of the United Nations"?
Held: Appeal allowed. Justice Bastarache, writing for the majority, found that the conviction did not violate the Convention and sent the matter to the Convention Refugee Determination tribunal.
“In my view, the appellant’s conspiring to traffic in a narcotic is not a violation of Article 1F(c). I would allow the appeal and return the matter to the Convention Refugee Determination Division for consideration under Article 33 of the Convention, and s.19 and s.53 of the Act, if the respondent chooses to proceed”
-In a more recent decision, the SCC applied a correctness standard to a decision of the Canadian International Trade Tribunal (CITT) on a jurisdiction issue:
___Northrup Grumman Overseas Services Corporation v Canada (Attorney General) [2009]__
Held: the court revisited the CITT’s interpretation of Canada’s inter-governmental Agreement on Internal Trade (AIT), the Canadian International Trade Tribunal Act 1985, and the CITT Regulations, and concluded that the CITT had incorrectly allowed a non-Canadian supplier to bring a complaint under the AIT.
After analyzing and interpreting these instruments, the court made this further comment on the wider rationales that had been offered to support the CITT’s decision to allow a non-Canadian supplier to bring a claim under the AIT. The comment points to the sorts of issues, including policy implications, that the court will be inclined to decide for itself when applying a correctness standard.
-In the following decision below, by the New Brunswick CA, the CA applied a CORRECTNESS standard to an interpretation by the Appeals Tribunal of the provincial Workplace Health, Safety, and Compensation Commission of the term “accident” in a federal statute.
-The Appeals Tribunal had resolved the issue of interpretation by looking to the meaning given to the term “accident” in a comparable provincial statute.
________Stewart v Workplace Health, Safety and Compensation Commission [2008]_______
Held: The unanimous court concluded:
“It is my view the only purpose of s. 4(2) of GECA is to ensure the rates and conditions of compensation payable to injured federal employees mirror the rates and conditions for other injured workers in New Brunswick once the threshold of entitlement has been determined. Parliament has not, in my view, delegated to the legislature of each province the right to amend federal legislation by redefining „accident‟ in GECA in the province’s own image; nor did Parliament intend to create a patchwork across Canada whereby federal employees in different provinces are faced with different thresholds for proving a compensable injury”
-This Court allowed the appeal and remitted the matter to the Appeals Tribunal for determination of whether, in light of those reasons, the gradual onset of stress in the circumstances constituted an “accident” under GECA.
-The New Brunswick CA’s substitution of its own interpretation of the term “accident” in the federal Government Employees Compensation Act was motivated by its view that the Appeals Tribunal had wrongly concluded that the interpretation of that term should track the meaning given to the same term by the CA in another decision in the provincial Workers’ Compensation Act.
-The court’s rationale for applying a CORRECTNESS standard, based on the Dunsmuir framework, emphasized the presence of a statutory right of appeal on questions of jurisdiction and law, as well as past court decisions involving the same decision-maker on questions of law.
RIGHTS OF APPEAL ON QUESTIONS OF FACT:
-Based on Dunsmuir, one might expect that CORRECTNESS review would never apply in the case of question of FACT (or MIXED.
-Where there is a statutory right of appeal on questions of LAW, however, a reviewing court may approach the task of review differently depending on the precise nature of the appeal.
-Thus, if the legislation specifies a very broad appeal, by way of hearing de novo, it is likely that the court will rehear the evidence and be prepared to reach a totally different conclusion from that of the tribunal. However, where the appeal is on the record of the proceedings below, the court will more likely pay some regard to the findings made by the initial decision-maker.
_________________Re Reddall and College of Nurses of Ontario [1981]________________
838
THE ESTABLISHMENT OF A SINGLE DEFERENTIAL STANDARD
-The majority of the SCC in Dunsmuir explained its decision to replace the standard of reasonableness simpliciter and patent unreasonableness with a SINGLE DEFRENTIAL STANDARD OF REASONABLENESS [para 34-42] (844-846)
-An obvious benefit of a single deferential standard is that is avoids any need to devise a clear and workable methodology to differentiate review based on reasonableness simpliciter from that based on patent unreasonableness.
-The decisions after Dunsmuir show that courts sought to address the issues of whether the single reasonableness standard entailed a “spectrum” of deference rather than a singular approach to deference. They clarified that reasonableness was NOT a spectrum, rather, as Binnie in Khosa [2009] put it, “reasonableness is a single standard that takes its colour from the context.”
-Consider in the next section how the need to “contextualize” the act of deference affects or clarifies the process of reasonableness review.
REASONABLENESS REVIEW
-After laying out its rationale for moving to a single deferential standard in Dunsmuir, the majority turned to explaining the reasonableness standard [para 46-50]. (p847-848)
-The flexible approach in Dunsmuir to the actual process of deference is based, we may assume, on the SCC’s confidence that lower courts know how best to show deference in the circumstances of individual cases and that they will be faithful to the spirit of deference that is evidence in the SC’s jurisprudence from the CUPE decision of 1979 to Dunsmuir itself.
-Yet Dunsmuir does not provide specific guidance on just how a court should go about applying the reasonableness standard. This is an outcome of the need for a court to characterize reasonableness in a way that can be adapted to an extraordinary range of circumstances. But it also invites further questions about whether courts can and should achieve greater clarity for those affected by substantive review and for those who make administrative decisions.
-In the following post-Dunsmuir decision, the Alberta CA applied a reasonableness standard of review of a narrow question of statutory interpretation that arose from a municipal tax assessment of commercial property.
-The case is of interest here primarily for its concise discussion of the standard of review analysis and for its reasoning on why the provincial Municipal Government Board’s interpretation of its home statute should be upheld as reasonable:
___________Calgary (City) v Alberta (Municipal Government Board) [2008]___________
Issue: whether the Hudson Bay Company (“the Bay”) is entitled, under s.460(3) of the Municipal Government Act 2000, to make a complaint to an assessment of property that is occupies as a tenant.
Facts:
Held: Appeal allowed. The Bay is an assessed person, by virtue of its ownership of the downtown Bay store. It therefore has the right to make a complaint about the assessment of the shopping centers in question. Zellers is not a party to this appeal. The appeal is allowed and returned to the MGB for decision.
-As indicated above, there was some debate after Dunsmuir about whether the reasonableness standard reflected a spectrum, such that a court, having decided to defer, would then need to determine more precisely how much deference was required in the case before it.
-In Dunsmuir, Bennie appeared to read the majority’s reasons as indicating that reasonableness was a spectrum-based concept “that covers...in the reviewing court’s evaluation, in light of the appropriate degree of deference, of whether the decision falls within the range of reasonable administrative choices”
-This view of reasonableness as a spectrum was canvassed and rejected by the Ontario CA in Mills v Ontario (Workplace Safety and Insurance Appeals Tribunal) [2008] [para 14-24] (p857-858)
-Subsequently, the SC also confirmed in Canada (Citizenship and Immigration) v Khosa [2009] that reasonableness was NOT a spectrum by referring to reasonableness as “a single standard that takes its colour from the context”. [para 59-68] (p858-861)
THE RELEVANCE OF THE FACTORS IN THE STANDARD OF REVIEW ANALYSIS
-Based on Khosa, then, the application of the reasonableness standards will vary with the context
-This “context” could include various components, such as:
àThe identity and institutional make-up of the decision maker,
àThe types of decision,
àThe nature of the evidence before the decision maker and the degree to which the decision make’s weighing of the evidence drove its decision,
àThe relevant terms of the statute,
àThe purpose of the statutory scheme, and
àThe past practice in the judicial review of that decision-maker in comparable circumstances.
-Moreover, these components may interact with each other in ways that guide the court’s approach to deference.
-In applying reasonableness, a court may find it useful to refer in its analysis to factors that informed its initial determination of the standard of review. Likewise, where the court relied on past decisions to determine the standard of review, it may look to those decisions in order to highlight just how the courts have shown deference previously in the relevant context.
-Dr. Q v College of Physicians and Surgeons of British Columbia [2003] – This pre-Dunsmuir decision reveals that the court, while deferring, may also need to review carefully the key evidence before a decision-maker in order to work out whether the decision-maker’s conclusions were reasonable.
-In both Dr. Q and Khosa, we see how deferential review of fact-laden decisions may paradoxically require a court to examine closely how the decision-maker dealt with and weighed the evidence before it. The court may need to do this in order to isolate factual issue that was central to the decision as a whole.
-It may also need to examine how the tribunal’s apprehended the evidence in answering the relevant issue.
NOTE: however, the purpose of the court’s close examination either of the tribunal’s reasoning on factual issues, or the evidence itself, should be to determine whether the decision fall within the range of acceptable options. It is NOT an opportunity for the court to form and substitute its own conclusions.
-Thus, in Khosa, so long as the decision of the IAD majority reached “its OWN conclusions based on its OWN appreciation of the evidence” and so long as its decision fell within “the range of reasonable outcomes” (context), the decision would stand
-In the next case, the Saskatchewan CA applied the reasonableness standard to an arbitration board’s interpretation of a collective agreement in a highly specific negotiation context.
-The court’s review of the board’s interpretation was affected by its appreciation of that context and the court’s assessment of various factors in the standard of review analysis was invoked by the court in its application of the reasonableness standard:
_____Art Hauser Centre Board Inc. (City of Prince Albert) v CUPE Local No.882 [2008]____
Held: “While I agree with the Chambers judge that the appropriate standard of review is reasonableness, the application of that standard requires the reviewing judge to determine whether the decision under review judge to determine whether the decision under review falls within a range of acceptable outcomes. After having considered the nature of the board, the question it was required to decide and the evidence before it, the Board’s reasons, the law pertaining to contracting out it the labour relations setting, the possible alternative interpretations of Article 12.07 and the language of the clause, I conclude that the Board’s decision represents one of the acceptable reasonable interpretations of Article 12.07. For these reasons, the appeal is allowed and the decision of the Board is restored with costs on Column 2 in this Court and on the appropriate tariff in the Queen’s Bench.”
CORRECTNESS REVIEW IN THE GUISE OF REASONABLENESS?
-In the following decision, the BC CA applied a reasonableness standard to an issue of legal interpretation that was decided by a commercial arbitrator
___________Western Forest Products Inc. v Hayes Forest Services Limited [2009]_________
The Arbitral Decision: Thus, the arbitrator determined the liability issue in favour of the contractor, Hayes. In effect, he decided that a fair application of the AAC reduction criteria required Western to consider all reasonable operational alternatives to mitigate a reasonably necessary termination decision. As permitted by s. 33(1) of the Commercial Arbitration Act, Western sought leave to appeal the arbitrator's decision on the ground that the arbitrator had committed an error of law. Although Hayes disagreed with that statement of the arbitrator's conclusion, it did not resist the application and leave was granted. It pointed out that the arbitrator had decided Western's proposal was unfair because it had failed to consider potential alternatives to the contract termination and therefore did not comply with s. 33.22(h) of the Regulation.
Grounds of Appeal: In its factum, Hayes states the chambers judge erred:
(a) By giving the term "fairly" an unduly restrictive meaning and effectively equating the licence holder's obligation to act "fairly" under subsection 33.22(h) with the obligation to take into account the AAC reduction criteria.
“When I consider these factors together, they point to a standard of reasonableness. This means that the arbitrator's interpretation of s. 33.22(h) of the Regulation must be given the "respectful attention" discussed at paras. 48 and 49 in Dunsmuir. The final question is whether his interpretation is unreasonable.”
Held: Appeal dismissed.
“I am persuaded the arbitrator's reasoning process was so flawed as to take his interpretation of s. 33.22(h) of the Regulation beyond the range of reasonableness. Although he stated the test for fairness correctly at para. 49 of his reasons for the award, he then followed a path of reasoning that led him to import a criterion not included in the provision he was applying, thereby unreasonably taking it upon himself to depart from the legislated factors to be considered when resolving a fairness objection under the Regulation.”......
-The court concluded that the arbitrator’s interpretation of the term “unfairly” in a provincial regulation dealing with the allocation of logging subcontractors by timber companies was unreasonable.
-In concluding that the arbitrator’s reasoning went “beyond the range of reasonableness”, the court focused closely on the choice of criteria applied by the arbitrator.
-As in the case of Dunsmuir, one may ask whether the CA effectively engaged in CORRECTNESS review, in the guise (disguise) of deference?.
-To address whether the CA in Hayes engaged in CORRECTNESS review in the guise of reasonableness, on the question of law, one must examine
àWhether the language in the regulation lent itself to multiple answers and
àWhether the answer given by the arbitrator fell within the acceptable range...
...or, to use the famous words of Dickson in CUPE (1979), whether the arbitrator’s interpretation was “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review”
REASONABLENESS AND GIVING REASONS
-As already discussed, giving reasons is a requirement of procedural fairness “where the decision has important significance for the individual, where there is a statutory right of appeal, or in other circumstances” (Baker).
-That said, giving reasons is also important for the reasonableness review of substantivedecisions.
-Thus, in Dunsmuir, the majority stated that an examination of “the qualities that make a decision reasonable” entails reference “both to the process of articulating the reasons and the outcomes”. And the main concern or reasonableness review is said to be “with the existence of justification, transparency and intelligibility within the decision-making process”
-These statements indicate that the giving of reasons may be an important prerequisite for a court to conclude that a substantive decision of an administrative actor was reasonable...
...however the majority in Dunsmuir suggested that a court may develop for itself reasons to support a decision that are NOT present in the reasons of the decision-maker or that the decision-maker’s reasons do not capture the court’s rationale
· basically, the court may invent reasons
-This raises challenging questions about the extent to which a court should revisit the reasons of a decision-maker in the course of SUBSTANTIVE review.
-As we see in Macdonald, the absence of reasons that are adequate to allow the evaluation of a substantive decision may prompt a court to refer the case BACK to the administrative decision-maker for a proper explanation.
NOTE: this is NOT a matter of procedural fairness, but it is on the basis that the reasons given were INADEQUATE for the court to determine whether the decision was reasonable.
___________________Macdonald v Mineral Springs Hotel [2008] ____________________
Facts: The respondent, Macdonald, is a physician with medical staff privileges at the Hospital. In mid-2002 he asked the OR Committee for more OR time, which request it considered. In Fed 2003 he write the Hospital’s Chief of Staff asking him to increase his allocation of OR time from one day every 3months to one day every 2 weeks. The matter was referred to the OR Committee, which formed a sub0committee to re-evaluate the OR allocation process. Both the sub-committee (where Macdonald was a member) and the OR Committee refused the request.
He appealed to the Hospital Privileges Appeal Board (HPAB), a majority of which concluded it had no jurisdiction to hear his appeal because it did not involve the matter of his “privileges”.
Issue: was the HPAB decision reasonable?
“Reasonableness applies not only to the outcome of the tribunal’s decision but also to the ‘process of articulating reasons’ and the ‘existence of justification, transparency and intelligibility within the decision-making process’ (Dunsmuir) and the notion of deference requires ‘a respectful attention to the reasons offered’ (Dunsmuir).”
“Nothing can be gleaned here by examining the reasonableness of the outcome because there are only two possible: either HPAB had jurisdiction or it do not. Therefore, in applying the reasonableness standard it is necessary to focus on matters such as justification, transparency and intelligibility. Without the benefit of the HPAB’s reasoning about how it employed its expertise to interpret its home statute, it is impossible to determine whether its decision was reasonable”
Held: Under s.21(3) of the Act, the issue must be REMITTED to the HPAB with a direction that it explain why it concluded that the decision not to vary Macdonald’s OR time is not a question of privilege. The reasons MUST BE SUFFICIENT to allow for meaningful appellate review and answer Macdonald’s ‘functional need to know’ why the decision has been made.
Dissent – the HPAB’s decision was reasonable. The HPAB’s majority’s reasons were sufficient to find its decision reasonable.
A HISTORICAL EXAMPLE OF REASONABLENESS REVIEW
-Southam was the first case in which the SC expressly identified reasonableness simpliciter as a third (or middle) category of review. It thus provides an interesting example of how to show deference based on the pre-Dunsmuir distinction between reasonableness simpliciter and patent unreasonableness.
-Also relevant, and also relevant today, is the court’s choice to defer to a decision of a federal tribunal in spite of its own doubts about he appropriateness of the tribunal’s decision.
· Basically, out of respect.
- Canada (Director of Investigation and Research) v Southam Inc [1997], offers an example of deference doctrine in its most genuine form: an instance in which the court, out of respect for legislative choices about administrative decision making, disciplines itself by declining to interfere with a decision about which it holds significant reservations.
THE JUSISDICTION OF TRIBUNALS
AND THE CONSTITUTION
-In this chapter, we consider 5 questions about the allocation of functions between the courts and administrative tribunals when a constitutional issue arises from a dispute that is within the jurisdiction of a statutory court or tribunal.
(1) THE JURISDUCTION OF TRIBUNALS TO DECIDE CONSTITUTIONAL CHALLENGES
Do administrative agencies have jurisdiction to decide Charter or other constitutional challenges to the validity of the legislation that they administer, or are these issues that only superior courts may decide?
-It is clear that, in exercising their statutory powers, administrative tribunals should take the constitution including the Charter into account.
-Many tribunals have been faced with hard questions; an indication of their practical importance is that the SCC visited this question on 5 separate occasions until the issue was resolved with relative clarity in the SCC’s decision in Martin.
-This decision is now the starting point for an analysis of whether a tribunal, based on the terms of its empowering statute, has the authority to decide a constitutional question and, in turn, to decline to apply a provision of a statute in a dispute before the tribunal on grounds that the provision is unconstitutional ... ?
Nova Scotia (Workers' Compensation Board) v. Martin (2003) SCJ No.54
PRINCIPLE: Administrative tribunals have jurisdiction to subject legislative provisions to Charter scrutiny where they had statutory authority to consider issues of LAW.
Facts: Laseur and Martin sustained workplace injuries and were unable to return to work due to chronic pain. The Board denied their applications to receive further benefits, and they appealed to the Workers' Compensation Appeals Tribunal, arguing that section 10B of the Workers' Compensation Act violated section 15(1) of the Charter by limiting compensation for chronic pain to four weeks. The Appeals Tribunal found that the chronic pain provisions violated the Charter. The Board appealed the Charter finding, and Laseur and Martin cross-appealed. In allowing the Board's appeal, the Court of Appeal held that the Appeals Tribunal did not have the jurisdiction to decide whether provisions under the Act and Regulation were constitutional.
Held: The Appeals Tribunal had jurisdiction to interpret and apply the Charter with respect to the Act and Regulation. Administrative tribunals had jurisdiction to subject legislative provisions to Charter scrutiny where they had statutory authority to consider issues of law. Pursuant to the Act, the Appeals Tribunal had jurisdiction to decide questions of law, and therefore it had the jurisdiction to decide issues of constitutionality.
-According to Martin, an administrative decision-maker has the authority to decide constitutional questions where, based on its statute, it has the explicit or implicit authority to decide questions of LAW, unless the authority to decide constitutional questions has been removed, explicitly or implicitly, by the statute.
NOTE: this decision adopted a position of openness to administrative actors interpreting and applying the Charter. This position was reflected originally in the dissent by McLachlin in Cooper (1996) (which was a much more restrictive position based on its assessment of institutional and policy consequences of allowing particular decision makers to decide constitutional questions)
-Thus, the decision in Martin reaffirmed a FLEXIBLE approach of the SC – originally laid out in the trilogy of Douglas College; Cuddy Chicks; and Tetreault-Gadoury – to the power of administrative tribunals to decline to apply a provision on the basis that it failed to comply with Charter rights.
(2)&(3) CONSTITUTIONAL CHALLENGES AND REMEDIES: THE APPROPRIATE FORUM
-The 2nd and 3rd questions arise if the answer to question 1 is a “yes”, is positive.
2- Must a litigant resort exclusively to, or at least exhaust, the statutory remedies specifically provided before going to the superior courts?
3- May administrative agencies grant constitutional remedies and can an administrative tribunal ever be a court of competent jurisdiction for the purposes of s.24(1), the remedies provision of the Charter?
-Both these issues were dealt with comprehensively in the following decision of the SCC.
_______________________________R v Conway [2010] ___________________________
Issue: whether the Ontario Review Board, in reviewing a mentally ill offender’s continued detention in a mental health facility, had the jurisdiction to award him an absolute discharge as a s.24(1) remedy?
Held: Appeal dismissed.
“Remedies granted to redress Charter wrongs are intended to meaningfully vindicate a claimant’s rights and freedoms (Doucet-Boudreau [2003; Khadr [2010]). Yet, it is not the case that effective, vindicatory remedies for harm flowing from unconstitutional conduct are available only through separate and distinct Charter applications (Nasogaluak [2010]). Charter rights can be effectively vindicated through the exercise of statutory powers and processes (Nasogaluak; Dagenais; Okwuobi). In this case, it may well be that the substance of Mr. Conway’s complaint about where his room is located can be fully addressed within the framework of the Board’s statutory mandate and the exercise of its discretion in accordance with Charter values. If that is what the Board ultimately concludes to be the case, resort to s. 24(1) of the Charter may NOT add either to the Board’s capacity to address the substance of the complaint or to provide appropriate redress.”
When the Charter was proclaimed in 1982, its relationship with administrative tribunals was a tabula rasa. It was not long, however, before various dimensions of the relationship found their way to this Court.
The first relevant wave of cases started in 1986 with Mills v. The Queen, [1986]. The philosophical legacy of Mills was in its conclusion that for the purposes of s. 24(1) of the Charter, a “court of competent jurisdiction” was a “court” with jurisdiction over the person, the subject matter, and the remedy sought. For the next 25 years, this three-part test served as the grid for determining whether a court or administrative tribunal was a “court of competent jurisdiction” under s. 24(1) of the Charter.
The second wave started in 1989 with Slaight Communications Inc. v. Davidson, [1989]. Although Slaightdid not — and does not — offer any direct guidance on what constitutes a “court of competent jurisdiction”, its legacy was in its conclusion that any exercise of statutory discretion is subject to the Charter and its values.
The third and final wave started in 1990 with Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] followed in 1991 by Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991]and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991]. The legacy of these cases — the Cuddy Chickstrilogy — is in their conclusion that specialized tribunals with both the expertise and authority to decide questions of law are in the best position to hear and decide constitutional questions related to their statutory mandates
The impact of these three jurisprudential waves has been to confine constitutional issues for administrative tribunals to three discrete universes. It seems to me that after 25 years of parallel evolution, it is time to consider whether the universes can appropriately be merged.
The Merger:
“Building on the jurisprudence, therefore, when a remedy is sought from an administrative tribunal under s. 24(1), the proper initial inquiry is whether the tribunal can grant Charter remedies generally.”
To make this determination, the first question is:
àWhether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of LAW?
If it DOES, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter — and Charter remedies — when resolving the matters properly before it.
Once the threshold question has been resolved in favour of Charter jurisdiction, the
second questionis:
àWhether the tribunal can grant the particular remedy sought, given the relevant statutory scheme?
Answering this question is necessarily an exercise in discerning legislative intent.
o What will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal.
o Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal’s statutory mandate, structure and function (Dunedin).
NOTES:
-Conway harmonizes the framework for analyzing tribunal jurisdiction over the Charter.
-It employs the test in Cooper and Martin –
- that is, where a tribunal has statutory authority to decide questions of LAW, it is assumed to have jurisdiction over Charter questions unless that jurisdiction is specifically removed by statute –
to resolve the particular issue of a tribunal’s remedial jurisdiction under s.24(1).
-HOWEVER, Conway makes it clear that s.24(1) does NOT expand the range of remedies that a tribunal may award pursuant to statute, and that the “Charter rights can be effectively vindicated through the exercise of statutory powers and processes”
(4) THE STANDARD OF REVIEW
What standard of review applies when an administrative agency makes a pronouncement on a constitutional question or provides a constitutional remedy?
-Whether an administrative tribunal has authority to deal with constitutional questions or is a court of competent jurisdiction... is a primary jurisdictional question which the tribunal must be correct of (Martin; Dunsmuir).
-The tribunal’s position on this issue is presumably that it is NOT entitled to any deference.
-Indeed, the cases all proceed WITHOUT any standard of review analysis on this point because it is simply assumed!
(5) JURISDICTION TO CONSIDER QUASI-CONSTITUTIONAL STATUTES
To what extent does the court’s analysis of jurisdiction and constitutional questions extend also to a tribunal’s application of “quasi-constitutional” statutes, such as a human rights code?
-The question of a tribunal’s jurisdiction to decide a specified category of legal questions os not confined to Charter and Constitution Act questions.
-In Paul, the SCC held that the BC Forest Appeals Commission had jurisdiction to deal with questions of aboriginal rights and title in the contexts of an appeal from a seizure of logs from the member of a First Nations band.
Paul v. British Columbia (Forest Appeals Commission) (2003) SCJ No.34
PRINCIPLE: To determine if a tribunal had the power to apply the constitution, the essential question was whether the enabling legislation granted the tribunal jurisdiction to interpret or decide any question of law.
Facts: Appeal by the B.C. Attorney General and the Ministry of Forests from a decision of the B.C. Court of Appeal that s. 91(24) of the Constitution Act, 1867 precluded Parliament from conferring jurisdiction on the Forest Appeals Commission to determine questions of aboriginal title. The Commission decided that it had jurisdiction to determine aboriginal rights issues, and the B.C. Supreme Court upheld this finding. A majority of the Court of Appeal set aside the decision.
Held: Appeal allowed. The province could give an administrative tribunal the capacity to consider questions of aboriginal title in the course of carrying out its mandate. It was constitutionally permissible for a valid provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. The Commission's enabling legislation did not attempt to supplement or amend the constitutional or federal rules regarding aboriginal rights. To determine if a tribunal had the power to apply the constitution, the essential question was whether the enabling legislation granted the tribunal jurisdiction to interpret or decide any question of law. The Commission had the power to decide questions of law, and nothing in the Code rebutted the presumption that the Commission could decide questions of aboriginal law.
-In the following case, the SC spit 4:3 on whether the Ontario Social Benefits Tribunal could decline to apply a provision of its authorizing legislation on the basis that the provision violated the Ontario Human Rights Code.
-The tribunal’s authority to decide “the constitutional validity of a provision of an Act or a regulation” but did not refer expressly to the Ontario Human Rights Code.
__________Tranchemontagne v Ontario (Director, Disability Support Program) [2006] ____
Facts: T and W applied for support pursuant to the Ontario Disability Support Program Act, 1997 ("ODSPA"). The Director of the program denied their applications and an internal review confirmed the Director's decisions. The Social Benefits Tribunal ("SBT") dismissed T's and W's appeals pursuant to s. 5(2) of the ODSPA based on its finding that they both suffered from alcoholism. In so concluding, the SBT found that it did not have jurisdiction to consider whether s. 5(2) was inapplicable by virtue of the Ontario Human Rights Code. The Divisional Court upheld the decision. On a further appeal, the Court of Appeal found that the SBT had the power to declare a provision of the ODSPA inapplicable on the basis that the provision was discriminatory, but that it should have declined to exercise that jurisdiction in favour of a more appropriate forum.
Issues: Does the Social Benefits Tribunal (SBT) have the jurisdiction to consider the Code in rendering its decisions? If the answer to the first question is “yes”, should the SBT have declined to exercise its jurisdiction in the present cases?
Held: Appeal allowed. The case is remitted to the SBT for a ruling on the applicability of s. 5(2) of the ODSPA.
THE USE AND MISUSE OF DISCRETION
INTRODUCTION
-The 1968 Report of the Royal Commission, An Inquiry into Civil Rights, chaired by J.C. McRuer – grudgingly accepted the need for discretion in the modern state.
-In Discretionary Powers, Galligan said: It has become obvious to all that discretion is the very life blood of the administrative state.
-In this chapter we are concerned with some of the doctrinal devices developed by the courts to review the legality of the exercise of discretion by an administrative agency.
-We also raise the question of the roles that should be played in administration by rule and discretion, respectively, and the extent to which the law of judicial review is alert to, encourages, or discourages the structuring of administrative discretion through measures such as, for example, the formulation of statutory rules, informal guidelines, and policy statements.
ABUSE OF DISCRETION AS A GROUND OF JUDICIAL REVIEW
-At common law, there have always been a number of discrete grounds of JR for abuse of discretion.
-The decision maker may have acted in bad faith, wrongfully delegated its powers, fettered its exercise of discretion by laying down a general rule and not responding to individual situations, or acted under the dictation of another.
-Another far more common ground of judicial review of discretion is the agency has tried to achieve some purpose not contemplated by its grant.
-Courts typically assumed that it was their function on an application for review to determine independently, the scope of the agency’s statutory discretion: whether a factor considered by the agency was relevant or a purpose pursued was authorized, is reviewable by a standard of correctness, not reasonableness.
-Even in CUPE – Dickson J citing with approval Nipawin: “basing the decision on extraneous matters” and “failing to take relevant factors into account” were examples of an exercise of an agency’s power that would take it outside its jurisdiction and the protection of a privative clause.
-However, the traditional approach to JR of discretionary decisions changed dramatically in Baker. Here, the SC emphasized the lack of a bright-line distinction at the margins between questions of law and exercises of discretion.
-This led to the court recognizing for the first time explicitly that the “pragmatic and functional approach” was ALSO of use in determining the intensity with which reviewing courts should be approaching decisions in the discretionary section of the spectrum between pure questions of law and completely unfettered discretion.
Suresh v Canada (Minister of Citizenship and Immigration) (2002) 1 SCR 3 (Can.)
Facts: one of the issues at stake here was a ministerial discretion to deport someone who was a danger to the security of Canada even where there was a possibility that that person’s “life, liberty and security of the person” would be in serious jeopardy in the country of his origin by reason of the serious prospect of torture.
Issue: what standard of review should be given to the Minister’s decision on whether the refugee faces a substantial risk of torture upon deportation. The Minister’s decision must ultimately conform to s.7 of the Charter.
Held: Appeal allowed. We conclude that in reviewing ministerial decisions to deport under the Act, courts must accord deference to those decisions. If the Minister has considered the correct factors, the courts should not reweigh them. Provided the s. 53(1)(b) decision is not patently unreasonable -- unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures -- it should be upheld. At the same time, the courts have an important role to play in ensuring that the Minister has considered the relevant factors and complied with the requirements of the Act and the Constitution.
Immigration Act –
s.53(1) ... no person who is determined under this Act or the regulations to be a Convention refugee, ... shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless ...
(b) the person is a member of an inadmissible class ... and the Minister is of the opinion that the person constitutes a danger to the security of Canada.
Standard of review:
-Ultimate question is always what the legislature intended (Pushpanathan). Here the language of the Act (the Minister must be “of the opinion” that the person constitutes a danger to the security of Canada) suggests a standard of deference.
(1) The presence or absence of a clause negating the right of appeal:
· The first factor suggests that Parliament intended only a limited right of appeal. Although the Minister's s. 53(1)(b) opinion is not protected by a privative clause, it may only be appealed by leave of the Federal Court, Trial Division (s. 82.1(1)), and that leave decision may not itself be appealed (s. 82.2).
o Thus, suggesting deference.
(2) the relative expertise of the decision-maker;
· The second factor, the relative expertise of the decision-maker, again favours deference. As stated in Baker "[t]he fact that the formal decision-maker is the Minister is a factor militating in favour of deference". The Minister, as noted by Lord Hoffmann "has access to special information and expertise in ... matters [of national security]".
(3) the purpose of the provision and the legislation generally; and
· The third factor again favours deference. This purpose, as discussed in Pushpanathan, is to permit a "humanitarian balance" of various interests -- "the seriousness of the danger posed to Canadian society" on the one hand, and "the danger of persecution upon refoulement"on the other. Again, the Minister is in a superior position to a court in making this assessment.
(4) the nature of the question
· Finally, the nature of the case points to deference. The inquiry is highly fact-based and contextual. As in Baker, the s. 53(1)(b) danger opinion "involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules", suggesting it merits a wide degree of deference.
-These factors suggest that Parliament intended to grant the Minister a broad discretion in issuing a s. 53(1)(b) opinion, reviewable only where the Minister makes a patently unreasonable decision.
“whether there is a substantial risk of torture if Suresh is deported is a threshold question. The threshold question here is in large part a fact-driven inquiry.
· It requires consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces, and more.
· It may also involve a reassessment of the refugee's initial claim and a determination of whether a third country is willing to accept the refugee.
· Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension.
· We are accordingly of the view that the threshold finding of whether Suresh faces a substantial risk of torture, as an aspect of the larger s. 53(1)(b) opinion, attracts deference by the reviewing court to the Minister's decision. The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not supported by the evidence or fails to consider the appropriate factors”
Human Rights issues and deferential standard:
-It is true that the question of whether a refugee constitutes a danger to the security of Canada relates to human rights and engages fundamental human interests.
-However, it is our view that a deferential standard of ministerial review will not prevent human rights issues from being fully addressed, provided proper procedural safeguards are in place and provided that any decision to deport meets the constitutional requirements of the Charter.
-We shall now consider two pre-Baker judgements on review for taking account of irrelevant factors (Sheehan) and wrongful purpose (Shell Canada).
Re Sheehan and Criminal Injuries Compensation Board (1975) 52 DLR (3d) 728
Facts: The respondent an inmate at the Kingston Penitentiary, had claimed compensation for injuries suffered during a riot at the jail. The Board had dismissed the claim, saying it considered the following circumstances relevant -- (1) if the respondent had not committed criminal acts himself he would not have been in the place where he was injured; (2) the injuries were suffered in a federal prison, outside the control of the Ontario government; (3) the respondent had not made any other attempts to obtain compensation.
Held (first court): The appeal allowed. I have come to the conclusion that none of the three circumstances considered by the Board were relevant. I conclude that the Court may properly review the decision of the Board in this case and that the matters considered by the Board were not relevant. In the circumstances the decision of the Board will be quashed and the matter remitted to the Board for consideration.
Held (Ontario CA): In my opinion the Divisional Court erred when it considered that its task was to determine if the said circumstances were relevant. In the light of the discretion vested in the Board to have regard to all circumstances which it considered relevant so long as it acted in good faith, the decision of the Board as to what considerations are relevant are unchallengeable
Law Enforcement Compensation Act (1970) –
5. In determining whether to make an order for compensation and the amount thereof, the Board may have regard to all such circumstances as it considers relevant, including any behaviour of the victim that directly or indirectly contributed to his injury or death.
· While the foregoing might have been a proper expression of the powers of the Board had it been directed to regard all relevant circumstances, by s. 5 the Board was given the right and duty to make compensation when, in its discretion, it deemed fit to do so and in reaching its decision the Act states that the Board is to be the judge of that which is relevant.
· With respect I do not construe the Act as authorizing the Court to review the correctness of the Board's decision made within the scope of its authority. The Legislature has expressly assigned to the Board and not to the Courts the discretionary authority to grant or deny compensation.
Shell Canada Products Ltd. v Vancouver (City) (1994) 1 SCR 231 (BC)
Facts: In 1989 the Council of the City of Vancouver passed two resolutions: first, not to do business with Shell Canada and Royal Dutch/Shell as long as Shell continues to do business in South Africa; and second, to declare the City a “Shell Free” zone until Shell divests from SA.
Issue: was the Council acting for improper purposes?
Held (majority): the Vancouver Charter places territorial limits on the Council and the Council’s purpose was ultra vires the Charter. Any powers implied from their general language must be restricted to municipal purposes and cannot extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality.
· Court took a narrow construction of municipal discretion.
· ... the exercise of a municipality's statutory powers, whatever the classification, is reviewable to the extent of determining whether the actions are intra vires.
· I therefore agree with the trial judge that the respondent was seeking to use its powers to do business "to affect matters in another part of the world", a purpose which is directed at matters outside the territorial limits of the City.
· So far as the purpose of the Vancouver Charter is concerned it is perhaps best expressed in s. 189, which provides that "Council may provide for the good rule and government of the city". In this regard its purpose does not differ from the purpose generally of municipal legislation which, as stated above, is to promote the health, welfare, safety or good government of the municipality. This places a territorial limit on Council's jurisdiction.
McLachlin J (dissenting): I am satisfied that in any event, the motives of the City of Vancouver cannot be said to have exceeded the powers which the Legislature has conferred on it. I cannot agree with my colleague that the phrase "good rule and government of the city" places a territorial limit on the factors which Council may consider in making decisions which are within its express power to make. The phrase is capable of encompassing matters outside the City's boundaries, provided they relate to the welfare of its citizens.
A. The Availability and Standard of JR:
1) Are the resolutions subject to judicial review:
· The assumption that government procurement is immune from judicial review rests on the traditional view that contract law is wholly in the realm of private law
· Against allowing judicial review of the purchasing power of governments is the argument that these are matters of private law. According to the private law of contract, each person, individual or corporate, has the right to contract with whom it chooses, and on the terms it chooses.
· On balance, it is my view that the doctrine of immunity from judicial review of procurement powers should not apply to municipalities. If a municipality's power to spend public money is exercised for improper purposes or in an improper manner, the conduct of the municipality should be subject to judicial review.
2) The proper scope of judicial review:
2 different approaches to construction of municipal powers:
(i) The Narrow Construction:
Merritt v City of Toronto – Municipal corporations, in the exercise of the statutory powers conferred upon them to make by-laws, should be confined strictly within the limits of their authority, and all attempts on their part to exceed it should be firmly repelled by the Courts.
(ii) the liberal approach:
Re Howard and City of Toronto – What is or is not in the public interest is a matter to be determined by the judgment of the municipal council; and what it determines, if in reaching its conclusion it acted honestly and within the limits of its powers, is not open to review by the Court.
Kuchma (SCC) – Upon the question of public interest, courts have recognized that the municipal council, familiar with local conditions, is in the best position of all parties to determine what is or is not in the public interest and have refused to interfere with its decision unless good and sufficient reason be established.
-The weight of commentary tends to be critical of the narrow approach, supporting instead a more generous, deferential approach:
(i) it adheres to the fundamental axiom that courts must accord proper respect to the democratic responsibilities of elected municipal officials and the rights of those who elect them.
(ii) aid the efficient functioning of municipal bodies and avoid the costs and uncertainty attendant on excessive litigation.
(iii) keeps with more flexible and deferential approach the Court has adopted in cases of JR of administrative agencies.
B. Were the resolutions beyond the City’s powers?:
· "the City has full power to engage in any commercial, industrial or business undertaking": s. 137(1).
· The Resolution not to do business with Shell until it stops trading with South Africa, clearly can be defended under the power of the City to engage in commercial and business activities. The City needs fuel. Fuel may be purchased from a variety of firms. This means that the City must of necessity discriminate between suppliers of fuel. The City and its agents doubtless make thousands of similar decisions each month, without any suggestion that the City must justify the reason why it chooses one firm over another.
· Thorne's Hardware Ltd. v. The Queen – "governments may be moved by any number of political, economic, social or partisan considerations". He went on to state that as a general rule the motives of governments enacting subordinate legislation should not be inquired into.
· Mounterbrooke Inc. v. City of Montreal – it has been held that in the absence of fraud, corruption or oppression, courts will not look behind a by-law to learn the motive.
· The term "welfare of the citizens", it seems to me, is capable of embracing not only their immediate needs, but also the psychological welfare of the citizens as members of a community who have an interest in expressing their identity as a community. Our language recognizes this: we speak of civic spirit, of city pride.
· The Council is to "provide for the good rule and government of the city": s. 189. These words are not restricted to the provision of services. They are broad enough to encompass expression of community concerns about what is happening outside the community's boundaries. Collective expression through elected representatives may be seen as a proper function of "government".
FAILURE TO CONSIDER RELEVANT FACTORS:
-The previous 2 cases involved challenges to an agency’s exercise of discretion on the ground that it took into consideration a factor that was not legally relevant or that it was pursuing some improper purpose.
-Failing to take into consideration a relevant factor is equally a basis for impugning the vires of an agency’s exercise of discretion, although there is some doubt its scope.
-An exercise of discretion will therefore be ultra vires only if the agency has overlooked a factor that its enabling statute expressly, or more usually, impliedly, obliged it to consider.
-In the aftermath of Baker, it is now clear that international law (including unincorporated ratified treaties) will have to be taken into account in the exercise of statutory and prerogative powers.
Oakwood Developments Ltd. v Rural Municipality of St Francois Xavier (1985) – a municipality had refused a developer permission to subdivide land for residential development because of the danger of flooding. However, the council had refused to read an engineer’s report that described measures that could be taken to avoid the problem.
Held: the refusal of permission in this case was ultra vires because the municipality had failed to consider evidence that was highly material to its legitimate concerns.
DISCRETION AND THE CHARTER, UNDERLYING PRINCIPLES OF THE CONSTITUTIONAL, AND INTERNATIONAL LAW
-Before the Charter, in the absence of express words or necessary implication in a statute, it was presumed that the legislature did not intend a discretion to be exercised so as to curtail basic liberties.
-The Charter improved the protection of individual rights previously provided by the common law.
-As a discussion of the relationship between administrative law and constitutional law with respect to the control of discretionary power and the restrictions of fundamental rights:
Slaight Communications Inc. v Davidson (1989) 1 SCR 1038
PRINCIPLE: an adjudicator may order a remedy which violates the Charter, but saved by s.1
Facts: Q107 employee, Davidson, was dismissed and it was held to be similar to a wrongful dismissal. The employer did not like him. The adjudicator ordered that the employer pay compensation (positive order) and write a letter which only stipulates facts (negative order), such as Davidson’s sales record in order to protect him from the employer writing something bad about Davidson.
Issue: does the arbitrators remedy violate the Charter?
Held: In conclusion, I am of the opinion that both of the adjudicator's orders at issue (the positive order and the negative order) infringe s. 2(b) but are saved by s. 1.
-Besides the Charter, other underlying constitutional principles as well as international law may be relevant to the exercise of discretionary power:
Lalonde v Ontario (Commission de restructuration des services de santé) (2001) 56 OR (3d) 505
PRINCIPLE: unwritten constitutional principles must be considered by Commissions.
Facts: As part of massive restructuring of health care services in Ontario, the Commission ordered the Montfort Hospital in Ottawa to downsize dramatically. The hospital, Ottawa’s only francophone hospital, sought JR of this decision alleging that the order violated an unwritten principle of the Constitution, the protection of minorities (as stated in Secession Reference).
Issue: did the Commission’s omission to consider the protection of minorities amount to a violation?
Held: We conclude, accordingly, that the Commission's directions must also be quashed on the ground that, contrary to the constitutional principle of respect for and protection of minorities, in the exercise of its discretion, the Commission failed to give serious weight and consideration to the linguistic and cultural significance of Montfort to the survival of the Franco-Ontarian minority.
· Where constitutional and quasi-constitutional rights or values are concerned, correctness or reasonableness will often be the appropriate standard (Baker).
· If the values of an international convention not adopted in statute form by Parliament have a bearing on the validity of the exercise of ministerial discretion (Baker), it must be the case that failure to take into account a fundamental principle of the Constitution when purporting to act in the public interest renders a discretionary decision subject to judicial review.
· The Commission was required by statute to exercise its powers with respect to Montfort in accordance with the public interest. In determining the public interest, the Commission was required to have regard to the fundamental constitutional principle of respect for and protection of minorities.
NOTE: the court emphasizes the case involved review of administrative discretion, not a challenge to a statue.
-Could the Ontario government achieve the same result by legislating the closure?
-Would review have also been available if the Commission took notice of the protection-of-minorities and still arrived at the same conclusion of closure?
DELEGATED LEGISLATION:
-We have so far focused on the individual exercise of discretion.
-Equally important as an administrative tool is the power, frequently delegated by stature, to make rules of more general application.
-This is called delegated legislation.
-Delegated legislation, like other exercises of discretion, is subject to JR on the grounds of ultra vires.
-Courts review delegated legislation passed by municipalities, generally in the form of bylaws.
-In particular, the courts have historically employed the concept of abuse of power to develop various categories where bylaws would be subject to closer scrutiny than delegated legislation passed by Cabinet or individual ministers.
UNREVIEWABLE DISCRETIONARY POWERS?
PREROGATIVE POWERS AND NON-JUSTICIABILITY
Operation Dismantle Inc. v Canada (1985) 1 SCR 441 (Can.)
PRINCIPLE: prerogative powers are reviewable.
Facts: Canada allowed the US to test armed missiles in Canadian airspace. Operation dismantle Inc. sues govt arguing that the decision was invalid because it violated their s.7 rights, Canada’s participation in program makes it more likely that we get attacked or involved in a nuclear war.
Held: argument failed because it is based on too many contingencies and difficult to prove link between the s.7 danger and the testing program => no reasonable cause of action. Not a matter for the court, it involves moral and political considerations.
· It is precisely this link between the Cabinet decision to permit the testing of the cruise and the increased risk of nuclear war which, in my opinion, they cannot establish.
Prerogative powers are reviewable:
· No reason to distinguish between cabinet decisions made pursuant to statutory authority and those made in the exercise of the royal prerogative, therefore they both fall within the ambit of the Charter.
· Prerogative powers are subject to the Charter.
Non-justiciability:
· ... these kinds of issues are to be treated as non-justiciable not simply because of evidentiary difficulties but because they involve moral and political considerations which it is not within the province of the courts to assess.
· it seems to me, there must be a strong presumption that governmental action which concerns the relations of the state with other states, and which is therefore not directed at any member of the immediate political community, was never intended to be caught by s. 7 even although such action may have the incidental effect of increasing the risk of death or injury that individuals generally have to face. ... This is not to say that every governmental action that is purportedly taken in furtherance of national defence would be beyond the reach of s. 7. If, for example, testing the cruise missile posed a direct threat to some specific segment of the populace -- as, for example, if it were being tested with live warheads -- I think that might well raise different considerations.
· the facts alleged in the statement of claim, even if they could be shown to be true, could not in my opinion constitute a violation of s. 7.
Black v Canada (Prime Minister) (2001) 54 OR (3d) 215 (CA)
PRINCIPLE: the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals (HL, Civil Serivce Unions). Confirms prerogative powers subject to JR.
Facts: Conrad Black seeks JR of PM’s recommendation to the Crown not to grant him peerage.
Held: peerage does not affect one’s rights, it is a gift from the UK government, therefore the decision is not reviewable/not justiciable even if there is evidence that PMs decision was influenced by bias or discrimination.
· confirms that prerogative powers are reviewable and we won’t distinguish laws regarding their source.
o Q becomes – does the prerogative right in question effect individual rights?
· the source of the power, statute or prerogative, should not determine whether the action complained of is reviewable.
o if the subject matter is ‘amenable to the judicial process’ it is reviewable and it is amenable to the judicial process if it affects the rights of individuals.
· results oriented decision – ignored damage to his reputation.
· the PM’s exercise of the honours prerogative is not judicially reviewable; refusal to grant an honour is far removed from the refusal to grant a passport or a pardon, where important individual interests are at stake; No Canadian citizen has a right to an honour nor a legitimate expectation of receiving an honour.
Public Interest Immunity: Cabinet Documents, the Common law and legislation
· Claims to public interest immunity are subject to JR. The judge will balance the public interest in maintaining the confidentiality of the document against the public interest in the due administration of justice.
· In the absence of fraud or some other extreme circumstances, the governmental power to decide whether to allocate public money to fund projects or organizations seems not to be subject to review in the courts at all.
-Challenging the legality of government funding decisions by invoking the Charter:
Native Women’s Assn. Of Canada v Canada (1994) 3 SCR 637 (Can.) – the appellants had refused direct funding by the government to enable them to participate effectively in the process of constitutional consultation that preceded the Charlottetown Accord. Argued infringement of s.2(b) and the equality right guaranteed by s.15, since the govt had provided funding to male-dominated aboriginal organizations, and its guarantee of non-discrimination on the ground of gender.
Held: “it cannot be said that every time the Government of Canada chooses to fund or consult a certain group, thereby providing a platform upon which to convey certain views, the Government is also required to fund a group purporting to represent the opposite point of view. ...the ramifications on government spending would be far reaching indeed”.
THE “PRIVATE” POWERS OF PUBLIC AUTHORITIES
-In addition to the more obvious government powers, generally conferred by statute, that public bodies exercise, public bodies also usually have the capacity to enter into contracts and to own and manage property.
-Sometimes, these powers are expressly granted, or their exercise is regulated, by statute, and the public authority must observe the statutory limits imposed.
-Often, the powers are implied in the body’s constitutive statute.
-In the exercise of the powers of contract and property ownership, the liability of public bodies for breach of contract and for tort is determined for the most part by the general law, without regard to the public or governmental character of the power.
-An important question that has not yet been fully explored by the courts is the extent to which the exercise of these “private” powers is also subject to review on public law grounds and, in particular, for abuse of discretion.
-The principle theoretical objection to the extension of the principles of administrative law to decisions taken by public authorities in their “private” capacity as contracting party or property owner has been the strong belief that public bodies should be subject to the same law as private individuals.
-On the other hand, it can be said that since public bodies enjoy powers of contract and property, not to advance their own interest but for the benefit of the public, it is mistaken to assume that the exercise of these powers should be subject only to the law that was developed to regulate the conduct of private individuals acting on their own behalf.
-There is also a public interest in ensuring that any procedures prescribed by the legislature are observed and that the contracting process is calculated to result in the making of the “best” decision.
-Should an agency be able to escape judicial surveillance by choosing to proceed by contract rather than by unilateral order?
-How far should the exercise of government contracting power be brought within the scope of JR on normal administrative law grounds?
.
INTRODUCTION
-In the preceding chapters on substantive review, we dealt with the extensive case law in which the SCC has forged the principles by which the appropriate standard of review is selected.
-...and in turn we see how these old standards were reshaped in Dunsmuir by its adoption of the new, unified standard of reasonableness.
-In this chapter, we sample a range of cases that illustrate how the two post-Dunsmuir standards of review – correctness and reasonableness – are applied in order to decide whether the administrative decision under review should be upheld, varied, overturned, or otherwise interfered with by a court.
-We pay particular attention to the reasonableness standard, which is not the same as wither reasonableness simpliciter or patent unreasonableness, but which also takes its meaning from past experiences with those standards.
-We first examine the standard of correctness
CORRECTNESS REVIEW
-When applying the correctness standard, Dunsmuir states that
“A reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct”
-As we see in Pushpanathan, when reviewing a legal question on a correctness standard, a court will carry out its own analysis of the statute or other legal instrument in order to arrive at an autonomous understanding of how silence or ambiguity should be resolved and how the legal standard should be applied.
Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998) 1 SCR 982
PRINCIPLE: When reviewing the LEGAL question on CORRECTNESS, The court will carry out its OWN analysis of the statute or other legal instruments to determine how the legal standard should be applied.
Facts: Appellant from Sri Lanka, claimed refugee status. Granted Permanent Residency. Convicted for conspiracy to traffic - 8yrs. Need IRB hearing to determine if excluded under 1F(c) of the 1951 Conv’n. Minister attempts to deport. Deportation of resident is conditional re: person not a Convention Refugee. IRB: not a CR (upheld at FCTJ and FCA).
Issues: How do the rules of treaty interpretation apply to the determination of the meaning of Article 1F(c) of the UN Refugee Convention? AND Does Pushpanathan's act of drug trafficking fall within the definition of "acts contrary to the purposes and principles of the United Nations"?
Held: Appeal allowed. Justice Bastarache, writing for the majority, found that the conviction did not violate the Convention and sent the matter to the Convention Refugee Determination tribunal.
“In my view, the appellant’s conspiring to traffic in a narcotic is not a violation of Article 1F(c). I would allow the appeal and return the matter to the Convention Refugee Determination Division for consideration under Article 33 of the Convention, and s.19 and s.53 of the Act, if the respondent chooses to proceed”
-In a more recent decision, the SCC applied a correctness standard to a decision of the Canadian International Trade Tribunal (CITT) on a jurisdiction issue:
___Northrup Grumman Overseas Services Corporation v Canada (Attorney General) [2009]__
Held: the court revisited the CITT’s interpretation of Canada’s inter-governmental Agreement on Internal Trade (AIT), the Canadian International Trade Tribunal Act 1985, and the CITT Regulations, and concluded that the CITT had incorrectly allowed a non-Canadian supplier to bring a complaint under the AIT.
After analyzing and interpreting these instruments, the court made this further comment on the wider rationales that had been offered to support the CITT’s decision to allow a non-Canadian supplier to bring a claim under the AIT. The comment points to the sorts of issues, including policy implications, that the court will be inclined to decide for itself when applying a correctness standard.
-In the following decision below, by the New Brunswick CA, the CA applied a CORRECTNESS standard to an interpretation by the Appeals Tribunal of the provincial Workplace Health, Safety, and Compensation Commission of the term “accident” in a federal statute.
-The Appeals Tribunal had resolved the issue of interpretation by looking to the meaning given to the term “accident” in a comparable provincial statute.
________Stewart v Workplace Health, Safety and Compensation Commission [2008]_______
Held: The unanimous court concluded:
“It is my view the only purpose of s. 4(2) of GECA is to ensure the rates and conditions of compensation payable to injured federal employees mirror the rates and conditions for other injured workers in New Brunswick once the threshold of entitlement has been determined. Parliament has not, in my view, delegated to the legislature of each province the right to amend federal legislation by redefining „accident‟ in GECA in the province’s own image; nor did Parliament intend to create a patchwork across Canada whereby federal employees in different provinces are faced with different thresholds for proving a compensable injury”
-This Court allowed the appeal and remitted the matter to the Appeals Tribunal for determination of whether, in light of those reasons, the gradual onset of stress in the circumstances constituted an “accident” under GECA.
-The New Brunswick CA’s substitution of its own interpretation of the term “accident” in the federal Government Employees Compensation Act was motivated by its view that the Appeals Tribunal had wrongly concluded that the interpretation of that term should track the meaning given to the same term by the CA in another decision in the provincial Workers’ Compensation Act.
-The court’s rationale for applying a CORRECTNESS standard, based on the Dunsmuir framework, emphasized the presence of a statutory right of appeal on questions of jurisdiction and law, as well as past court decisions involving the same decision-maker on questions of law.
RIGHTS OF APPEAL ON QUESTIONS OF FACT:
-Based on Dunsmuir, one might expect that CORRECTNESS review would never apply in the case of question of FACT (or MIXED.
-Where there is a statutory right of appeal on questions of LAW, however, a reviewing court may approach the task of review differently depending on the precise nature of the appeal.
-Thus, if the legislation specifies a very broad appeal, by way of hearing de novo, it is likely that the court will rehear the evidence and be prepared to reach a totally different conclusion from that of the tribunal. However, where the appeal is on the record of the proceedings below, the court will more likely pay some regard to the findings made by the initial decision-maker.
_________________Re Reddall and College of Nurses of Ontario [1981]________________
838
THE ESTABLISHMENT OF A SINGLE DEFERENTIAL STANDARD
-The majority of the SCC in Dunsmuir explained its decision to replace the standard of reasonableness simpliciter and patent unreasonableness with a SINGLE DEFRENTIAL STANDARD OF REASONABLENESS [para 34-42] (844-846)
-An obvious benefit of a single deferential standard is that is avoids any need to devise a clear and workable methodology to differentiate review based on reasonableness simpliciter from that based on patent unreasonableness.
-The decisions after Dunsmuir show that courts sought to address the issues of whether the single reasonableness standard entailed a “spectrum” of deference rather than a singular approach to deference. They clarified that reasonableness was NOT a spectrum, rather, as Binnie in Khosa [2009] put it, “reasonableness is a single standard that takes its colour from the context.”
-Consider in the next section how the need to “contextualize” the act of deference affects or clarifies the process of reasonableness review.
REASONABLENESS REVIEW
-After laying out its rationale for moving to a single deferential standard in Dunsmuir, the majority turned to explaining the reasonableness standard [para 46-50]. (p847-848)
-The flexible approach in Dunsmuir to the actual process of deference is based, we may assume, on the SCC’s confidence that lower courts know how best to show deference in the circumstances of individual cases and that they will be faithful to the spirit of deference that is evidence in the SC’s jurisprudence from the CUPE decision of 1979 to Dunsmuir itself.
-Yet Dunsmuir does not provide specific guidance on just how a court should go about applying the reasonableness standard. This is an outcome of the need for a court to characterize reasonableness in a way that can be adapted to an extraordinary range of circumstances. But it also invites further questions about whether courts can and should achieve greater clarity for those affected by substantive review and for those who make administrative decisions.
-In the following post-Dunsmuir decision, the Alberta CA applied a reasonableness standard of review of a narrow question of statutory interpretation that arose from a municipal tax assessment of commercial property.
-The case is of interest here primarily for its concise discussion of the standard of review analysis and for its reasoning on why the provincial Municipal Government Board’s interpretation of its home statute should be upheld as reasonable:
___________Calgary (City) v Alberta (Municipal Government Board) [2008]___________
Issue: whether the Hudson Bay Company (“the Bay”) is entitled, under s.460(3) of the Municipal Government Act 2000, to make a complaint to an assessment of property that is occupies as a tenant.
Facts:
Held: Appeal allowed. The Bay is an assessed person, by virtue of its ownership of the downtown Bay store. It therefore has the right to make a complaint about the assessment of the shopping centers in question. Zellers is not a party to this appeal. The appeal is allowed and returned to the MGB for decision.
-As indicated above, there was some debate after Dunsmuir about whether the reasonableness standard reflected a spectrum, such that a court, having decided to defer, would then need to determine more precisely how much deference was required in the case before it.
-In Dunsmuir, Bennie appeared to read the majority’s reasons as indicating that reasonableness was a spectrum-based concept “that covers...in the reviewing court’s evaluation, in light of the appropriate degree of deference, of whether the decision falls within the range of reasonable administrative choices”
-This view of reasonableness as a spectrum was canvassed and rejected by the Ontario CA in Mills v Ontario (Workplace Safety and Insurance Appeals Tribunal) [2008] [para 14-24] (p857-858)
-Subsequently, the SC also confirmed in Canada (Citizenship and Immigration) v Khosa [2009] that reasonableness was NOT a spectrum by referring to reasonableness as “a single standard that takes its colour from the context”. [para 59-68] (p858-861)
THE RELEVANCE OF THE FACTORS IN THE STANDARD OF REVIEW ANALYSIS
-Based on Khosa, then, the application of the reasonableness standards will vary with the context
-This “context” could include various components, such as:
àThe identity and institutional make-up of the decision maker,
àThe types of decision,
àThe nature of the evidence before the decision maker and the degree to which the decision make’s weighing of the evidence drove its decision,
àThe relevant terms of the statute,
àThe purpose of the statutory scheme, and
àThe past practice in the judicial review of that decision-maker in comparable circumstances.
-Moreover, these components may interact with each other in ways that guide the court’s approach to deference.
-In applying reasonableness, a court may find it useful to refer in its analysis to factors that informed its initial determination of the standard of review. Likewise, where the court relied on past decisions to determine the standard of review, it may look to those decisions in order to highlight just how the courts have shown deference previously in the relevant context.
-Dr. Q v College of Physicians and Surgeons of British Columbia [2003] – This pre-Dunsmuir decision reveals that the court, while deferring, may also need to review carefully the key evidence before a decision-maker in order to work out whether the decision-maker’s conclusions were reasonable.
-In both Dr. Q and Khosa, we see how deferential review of fact-laden decisions may paradoxically require a court to examine closely how the decision-maker dealt with and weighed the evidence before it. The court may need to do this in order to isolate factual issue that was central to the decision as a whole.
-It may also need to examine how the tribunal’s apprehended the evidence in answering the relevant issue.
NOTE: however, the purpose of the court’s close examination either of the tribunal’s reasoning on factual issues, or the evidence itself, should be to determine whether the decision fall within the range of acceptable options. It is NOT an opportunity for the court to form and substitute its own conclusions.
-Thus, in Khosa, so long as the decision of the IAD majority reached “its OWN conclusions based on its OWN appreciation of the evidence” and so long as its decision fell within “the range of reasonable outcomes” (context), the decision would stand
-In the next case, the Saskatchewan CA applied the reasonableness standard to an arbitration board’s interpretation of a collective agreement in a highly specific negotiation context.
-The court’s review of the board’s interpretation was affected by its appreciation of that context and the court’s assessment of various factors in the standard of review analysis was invoked by the court in its application of the reasonableness standard:
_____Art Hauser Centre Board Inc. (City of Prince Albert) v CUPE Local No.882 [2008]____
Held: “While I agree with the Chambers judge that the appropriate standard of review is reasonableness, the application of that standard requires the reviewing judge to determine whether the decision under review judge to determine whether the decision under review falls within a range of acceptable outcomes. After having considered the nature of the board, the question it was required to decide and the evidence before it, the Board’s reasons, the law pertaining to contracting out it the labour relations setting, the possible alternative interpretations of Article 12.07 and the language of the clause, I conclude that the Board’s decision represents one of the acceptable reasonable interpretations of Article 12.07. For these reasons, the appeal is allowed and the decision of the Board is restored with costs on Column 2 in this Court and on the appropriate tariff in the Queen’s Bench.”
CORRECTNESS REVIEW IN THE GUISE OF REASONABLENESS?
-In the following decision, the BC CA applied a reasonableness standard to an issue of legal interpretation that was decided by a commercial arbitrator
___________Western Forest Products Inc. v Hayes Forest Services Limited [2009]_________
The Arbitral Decision: Thus, the arbitrator determined the liability issue in favour of the contractor, Hayes. In effect, he decided that a fair application of the AAC reduction criteria required Western to consider all reasonable operational alternatives to mitigate a reasonably necessary termination decision. As permitted by s. 33(1) of the Commercial Arbitration Act, Western sought leave to appeal the arbitrator's decision on the ground that the arbitrator had committed an error of law. Although Hayes disagreed with that statement of the arbitrator's conclusion, it did not resist the application and leave was granted. It pointed out that the arbitrator had decided Western's proposal was unfair because it had failed to consider potential alternatives to the contract termination and therefore did not comply with s. 33.22(h) of the Regulation.
Grounds of Appeal: In its factum, Hayes states the chambers judge erred:
(a) By giving the term "fairly" an unduly restrictive meaning and effectively equating the licence holder's obligation to act "fairly" under subsection 33.22(h) with the obligation to take into account the AAC reduction criteria.
“When I consider these factors together, they point to a standard of reasonableness. This means that the arbitrator's interpretation of s. 33.22(h) of the Regulation must be given the "respectful attention" discussed at paras. 48 and 49 in Dunsmuir. The final question is whether his interpretation is unreasonable.”
Held: Appeal dismissed.
“I am persuaded the arbitrator's reasoning process was so flawed as to take his interpretation of s. 33.22(h) of the Regulation beyond the range of reasonableness. Although he stated the test for fairness correctly at para. 49 of his reasons for the award, he then followed a path of reasoning that led him to import a criterion not included in the provision he was applying, thereby unreasonably taking it upon himself to depart from the legislated factors to be considered when resolving a fairness objection under the Regulation.”......
-The court concluded that the arbitrator’s interpretation of the term “unfairly” in a provincial regulation dealing with the allocation of logging subcontractors by timber companies was unreasonable.
-In concluding that the arbitrator’s reasoning went “beyond the range of reasonableness”, the court focused closely on the choice of criteria applied by the arbitrator.
-As in the case of Dunsmuir, one may ask whether the CA effectively engaged in CORRECTNESS review, in the guise (disguise) of deference?.
-To address whether the CA in Hayes engaged in CORRECTNESS review in the guise of reasonableness, on the question of law, one must examine
àWhether the language in the regulation lent itself to multiple answers and
àWhether the answer given by the arbitrator fell within the acceptable range...
...or, to use the famous words of Dickson in CUPE (1979), whether the arbitrator’s interpretation was “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review”
REASONABLENESS AND GIVING REASONS
-As already discussed, giving reasons is a requirement of procedural fairness “where the decision has important significance for the individual, where there is a statutory right of appeal, or in other circumstances” (Baker).
-That said, giving reasons is also important for the reasonableness review of substantivedecisions.
-Thus, in Dunsmuir, the majority stated that an examination of “the qualities that make a decision reasonable” entails reference “both to the process of articulating the reasons and the outcomes”. And the main concern or reasonableness review is said to be “with the existence of justification, transparency and intelligibility within the decision-making process”
-These statements indicate that the giving of reasons may be an important prerequisite for a court to conclude that a substantive decision of an administrative actor was reasonable...
...however the majority in Dunsmuir suggested that a court may develop for itself reasons to support a decision that are NOT present in the reasons of the decision-maker or that the decision-maker’s reasons do not capture the court’s rationale
· basically, the court may invent reasons
-This raises challenging questions about the extent to which a court should revisit the reasons of a decision-maker in the course of SUBSTANTIVE review.
-As we see in Macdonald, the absence of reasons that are adequate to allow the evaluation of a substantive decision may prompt a court to refer the case BACK to the administrative decision-maker for a proper explanation.
NOTE: this is NOT a matter of procedural fairness, but it is on the basis that the reasons given were INADEQUATE for the court to determine whether the decision was reasonable.
___________________Macdonald v Mineral Springs Hotel [2008] ____________________
Facts: The respondent, Macdonald, is a physician with medical staff privileges at the Hospital. In mid-2002 he asked the OR Committee for more OR time, which request it considered. In Fed 2003 he write the Hospital’s Chief of Staff asking him to increase his allocation of OR time from one day every 3months to one day every 2 weeks. The matter was referred to the OR Committee, which formed a sub0committee to re-evaluate the OR allocation process. Both the sub-committee (where Macdonald was a member) and the OR Committee refused the request.
He appealed to the Hospital Privileges Appeal Board (HPAB), a majority of which concluded it had no jurisdiction to hear his appeal because it did not involve the matter of his “privileges”.
Issue: was the HPAB decision reasonable?
“Reasonableness applies not only to the outcome of the tribunal’s decision but also to the ‘process of articulating reasons’ and the ‘existence of justification, transparency and intelligibility within the decision-making process’ (Dunsmuir) and the notion of deference requires ‘a respectful attention to the reasons offered’ (Dunsmuir).”
“Nothing can be gleaned here by examining the reasonableness of the outcome because there are only two possible: either HPAB had jurisdiction or it do not. Therefore, in applying the reasonableness standard it is necessary to focus on matters such as justification, transparency and intelligibility. Without the benefit of the HPAB’s reasoning about how it employed its expertise to interpret its home statute, it is impossible to determine whether its decision was reasonable”
Held: Under s.21(3) of the Act, the issue must be REMITTED to the HPAB with a direction that it explain why it concluded that the decision not to vary Macdonald’s OR time is not a question of privilege. The reasons MUST BE SUFFICIENT to allow for meaningful appellate review and answer Macdonald’s ‘functional need to know’ why the decision has been made.
Dissent – the HPAB’s decision was reasonable. The HPAB’s majority’s reasons were sufficient to find its decision reasonable.
A HISTORICAL EXAMPLE OF REASONABLENESS REVIEW
-Southam was the first case in which the SC expressly identified reasonableness simpliciter as a third (or middle) category of review. It thus provides an interesting example of how to show deference based on the pre-Dunsmuir distinction between reasonableness simpliciter and patent unreasonableness.
-Also relevant, and also relevant today, is the court’s choice to defer to a decision of a federal tribunal in spite of its own doubts about he appropriateness of the tribunal’s decision.
· Basically, out of respect.
- Canada (Director of Investigation and Research) v Southam Inc [1997], offers an example of deference doctrine in its most genuine form: an instance in which the court, out of respect for legislative choices about administrative decision making, disciplines itself by declining to interfere with a decision about which it holds significant reservations.
THE JUSISDICTION OF TRIBUNALS
AND THE CONSTITUTION
-In this chapter, we consider 5 questions about the allocation of functions between the courts and administrative tribunals when a constitutional issue arises from a dispute that is within the jurisdiction of a statutory court or tribunal.
(1) THE JURISDUCTION OF TRIBUNALS TO DECIDE CONSTITUTIONAL CHALLENGES
Do administrative agencies have jurisdiction to decide Charter or other constitutional challenges to the validity of the legislation that they administer, or are these issues that only superior courts may decide?
-It is clear that, in exercising their statutory powers, administrative tribunals should take the constitution including the Charter into account.
-Many tribunals have been faced with hard questions; an indication of their practical importance is that the SCC visited this question on 5 separate occasions until the issue was resolved with relative clarity in the SCC’s decision in Martin.
-This decision is now the starting point for an analysis of whether a tribunal, based on the terms of its empowering statute, has the authority to decide a constitutional question and, in turn, to decline to apply a provision of a statute in a dispute before the tribunal on grounds that the provision is unconstitutional ... ?
Nova Scotia (Workers' Compensation Board) v. Martin (2003) SCJ No.54
PRINCIPLE: Administrative tribunals have jurisdiction to subject legislative provisions to Charter scrutiny where they had statutory authority to consider issues of LAW.
Facts: Laseur and Martin sustained workplace injuries and were unable to return to work due to chronic pain. The Board denied their applications to receive further benefits, and they appealed to the Workers' Compensation Appeals Tribunal, arguing that section 10B of the Workers' Compensation Act violated section 15(1) of the Charter by limiting compensation for chronic pain to four weeks. The Appeals Tribunal found that the chronic pain provisions violated the Charter. The Board appealed the Charter finding, and Laseur and Martin cross-appealed. In allowing the Board's appeal, the Court of Appeal held that the Appeals Tribunal did not have the jurisdiction to decide whether provisions under the Act and Regulation were constitutional.
Held: The Appeals Tribunal had jurisdiction to interpret and apply the Charter with respect to the Act and Regulation. Administrative tribunals had jurisdiction to subject legislative provisions to Charter scrutiny where they had statutory authority to consider issues of law. Pursuant to the Act, the Appeals Tribunal had jurisdiction to decide questions of law, and therefore it had the jurisdiction to decide issues of constitutionality.
-According to Martin, an administrative decision-maker has the authority to decide constitutional questions where, based on its statute, it has the explicit or implicit authority to decide questions of LAW, unless the authority to decide constitutional questions has been removed, explicitly or implicitly, by the statute.
NOTE: this decision adopted a position of openness to administrative actors interpreting and applying the Charter. This position was reflected originally in the dissent by McLachlin in Cooper (1996) (which was a much more restrictive position based on its assessment of institutional and policy consequences of allowing particular decision makers to decide constitutional questions)
-Thus, the decision in Martin reaffirmed a FLEXIBLE approach of the SC – originally laid out in the trilogy of Douglas College; Cuddy Chicks; and Tetreault-Gadoury – to the power of administrative tribunals to decline to apply a provision on the basis that it failed to comply with Charter rights.
(2)&(3) CONSTITUTIONAL CHALLENGES AND REMEDIES: THE APPROPRIATE FORUM
-The 2nd and 3rd questions arise if the answer to question 1 is a “yes”, is positive.
2- Must a litigant resort exclusively to, or at least exhaust, the statutory remedies specifically provided before going to the superior courts?
3- May administrative agencies grant constitutional remedies and can an administrative tribunal ever be a court of competent jurisdiction for the purposes of s.24(1), the remedies provision of the Charter?
-Both these issues were dealt with comprehensively in the following decision of the SCC.
_______________________________R v Conway [2010] ___________________________
Issue: whether the Ontario Review Board, in reviewing a mentally ill offender’s continued detention in a mental health facility, had the jurisdiction to award him an absolute discharge as a s.24(1) remedy?
Held: Appeal dismissed.
“Remedies granted to redress Charter wrongs are intended to meaningfully vindicate a claimant’s rights and freedoms (Doucet-Boudreau [2003; Khadr [2010]). Yet, it is not the case that effective, vindicatory remedies for harm flowing from unconstitutional conduct are available only through separate and distinct Charter applications (Nasogaluak [2010]). Charter rights can be effectively vindicated through the exercise of statutory powers and processes (Nasogaluak; Dagenais; Okwuobi). In this case, it may well be that the substance of Mr. Conway’s complaint about where his room is located can be fully addressed within the framework of the Board’s statutory mandate and the exercise of its discretion in accordance with Charter values. If that is what the Board ultimately concludes to be the case, resort to s. 24(1) of the Charter may NOT add either to the Board’s capacity to address the substance of the complaint or to provide appropriate redress.”
When the Charter was proclaimed in 1982, its relationship with administrative tribunals was a tabula rasa. It was not long, however, before various dimensions of the relationship found their way to this Court.
The first relevant wave of cases started in 1986 with Mills v. The Queen, [1986]. The philosophical legacy of Mills was in its conclusion that for the purposes of s. 24(1) of the Charter, a “court of competent jurisdiction” was a “court” with jurisdiction over the person, the subject matter, and the remedy sought. For the next 25 years, this three-part test served as the grid for determining whether a court or administrative tribunal was a “court of competent jurisdiction” under s. 24(1) of the Charter.
The second wave started in 1989 with Slaight Communications Inc. v. Davidson, [1989]. Although Slaightdid not — and does not — offer any direct guidance on what constitutes a “court of competent jurisdiction”, its legacy was in its conclusion that any exercise of statutory discretion is subject to the Charter and its values.
The third and final wave started in 1990 with Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] followed in 1991 by Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991]and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991]. The legacy of these cases — the Cuddy Chickstrilogy — is in their conclusion that specialized tribunals with both the expertise and authority to decide questions of law are in the best position to hear and decide constitutional questions related to their statutory mandates
The impact of these three jurisprudential waves has been to confine constitutional issues for administrative tribunals to three discrete universes. It seems to me that after 25 years of parallel evolution, it is time to consider whether the universes can appropriately be merged.
The Merger:
“Building on the jurisprudence, therefore, when a remedy is sought from an administrative tribunal under s. 24(1), the proper initial inquiry is whether the tribunal can grant Charter remedies generally.”
To make this determination, the first question is:
àWhether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of LAW?
If it DOES, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter — and Charter remedies — when resolving the matters properly before it.
Once the threshold question has been resolved in favour of Charter jurisdiction, the
second questionis:
àWhether the tribunal can grant the particular remedy sought, given the relevant statutory scheme?
Answering this question is necessarily an exercise in discerning legislative intent.
o What will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal.
o Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal’s statutory mandate, structure and function (Dunedin).
NOTES:
-Conway harmonizes the framework for analyzing tribunal jurisdiction over the Charter.
-It employs the test in Cooper and Martin –
- that is, where a tribunal has statutory authority to decide questions of LAW, it is assumed to have jurisdiction over Charter questions unless that jurisdiction is specifically removed by statute –
to resolve the particular issue of a tribunal’s remedial jurisdiction under s.24(1).
-HOWEVER, Conway makes it clear that s.24(1) does NOT expand the range of remedies that a tribunal may award pursuant to statute, and that the “Charter rights can be effectively vindicated through the exercise of statutory powers and processes”
(4) THE STANDARD OF REVIEW
What standard of review applies when an administrative agency makes a pronouncement on a constitutional question or provides a constitutional remedy?
-Whether an administrative tribunal has authority to deal with constitutional questions or is a court of competent jurisdiction... is a primary jurisdictional question which the tribunal must be correct of (Martin; Dunsmuir).
-The tribunal’s position on this issue is presumably that it is NOT entitled to any deference.
-Indeed, the cases all proceed WITHOUT any standard of review analysis on this point because it is simply assumed!
(5) JURISDICTION TO CONSIDER QUASI-CONSTITUTIONAL STATUTES
To what extent does the court’s analysis of jurisdiction and constitutional questions extend also to a tribunal’s application of “quasi-constitutional” statutes, such as a human rights code?
-The question of a tribunal’s jurisdiction to decide a specified category of legal questions os not confined to Charter and Constitution Act questions.
-In Paul, the SCC held that the BC Forest Appeals Commission had jurisdiction to deal with questions of aboriginal rights and title in the contexts of an appeal from a seizure of logs from the member of a First Nations band.
Paul v. British Columbia (Forest Appeals Commission) (2003) SCJ No.34
PRINCIPLE: To determine if a tribunal had the power to apply the constitution, the essential question was whether the enabling legislation granted the tribunal jurisdiction to interpret or decide any question of law.
Facts: Appeal by the B.C. Attorney General and the Ministry of Forests from a decision of the B.C. Court of Appeal that s. 91(24) of the Constitution Act, 1867 precluded Parliament from conferring jurisdiction on the Forest Appeals Commission to determine questions of aboriginal title. The Commission decided that it had jurisdiction to determine aboriginal rights issues, and the B.C. Supreme Court upheld this finding. A majority of the Court of Appeal set aside the decision.
Held: Appeal allowed. The province could give an administrative tribunal the capacity to consider questions of aboriginal title in the course of carrying out its mandate. It was constitutionally permissible for a valid provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. The Commission's enabling legislation did not attempt to supplement or amend the constitutional or federal rules regarding aboriginal rights. To determine if a tribunal had the power to apply the constitution, the essential question was whether the enabling legislation granted the tribunal jurisdiction to interpret or decide any question of law. The Commission had the power to decide questions of law, and nothing in the Code rebutted the presumption that the Commission could decide questions of aboriginal law.
-In the following case, the SC spit 4:3 on whether the Ontario Social Benefits Tribunal could decline to apply a provision of its authorizing legislation on the basis that the provision violated the Ontario Human Rights Code.
-The tribunal’s authority to decide “the constitutional validity of a provision of an Act or a regulation” but did not refer expressly to the Ontario Human Rights Code.
__________Tranchemontagne v Ontario (Director, Disability Support Program) [2006] ____
Facts: T and W applied for support pursuant to the Ontario Disability Support Program Act, 1997 ("ODSPA"). The Director of the program denied their applications and an internal review confirmed the Director's decisions. The Social Benefits Tribunal ("SBT") dismissed T's and W's appeals pursuant to s. 5(2) of the ODSPA based on its finding that they both suffered from alcoholism. In so concluding, the SBT found that it did not have jurisdiction to consider whether s. 5(2) was inapplicable by virtue of the Ontario Human Rights Code. The Divisional Court upheld the decision. On a further appeal, the Court of Appeal found that the SBT had the power to declare a provision of the ODSPA inapplicable on the basis that the provision was discriminatory, but that it should have declined to exercise that jurisdiction in favour of a more appropriate forum.
Issues: Does the Social Benefits Tribunal (SBT) have the jurisdiction to consider the Code in rendering its decisions? If the answer to the first question is “yes”, should the SBT have declined to exercise its jurisdiction in the present cases?
Held: Appeal allowed. The case is remitted to the SBT for a ruling on the applicability of s. 5(2) of the ODSPA.
THE USE AND MISUSE OF DISCRETION
INTRODUCTION
-The 1968 Report of the Royal Commission, An Inquiry into Civil Rights, chaired by J.C. McRuer – grudgingly accepted the need for discretion in the modern state.
-In Discretionary Powers, Galligan said: It has become obvious to all that discretion is the very life blood of the administrative state.
-In this chapter we are concerned with some of the doctrinal devices developed by the courts to review the legality of the exercise of discretion by an administrative agency.
-We also raise the question of the roles that should be played in administration by rule and discretion, respectively, and the extent to which the law of judicial review is alert to, encourages, or discourages the structuring of administrative discretion through measures such as, for example, the formulation of statutory rules, informal guidelines, and policy statements.
ABUSE OF DISCRETION AS A GROUND OF JUDICIAL REVIEW
-At common law, there have always been a number of discrete grounds of JR for abuse of discretion.
-The decision maker may have acted in bad faith, wrongfully delegated its powers, fettered its exercise of discretion by laying down a general rule and not responding to individual situations, or acted under the dictation of another.
-Another far more common ground of judicial review of discretion is the agency has tried to achieve some purpose not contemplated by its grant.
-Courts typically assumed that it was their function on an application for review to determine independently, the scope of the agency’s statutory discretion: whether a factor considered by the agency was relevant or a purpose pursued was authorized, is reviewable by a standard of correctness, not reasonableness.
-Even in CUPE – Dickson J citing with approval Nipawin: “basing the decision on extraneous matters” and “failing to take relevant factors into account” were examples of an exercise of an agency’s power that would take it outside its jurisdiction and the protection of a privative clause.
-However, the traditional approach to JR of discretionary decisions changed dramatically in Baker. Here, the SC emphasized the lack of a bright-line distinction at the margins between questions of law and exercises of discretion.
-This led to the court recognizing for the first time explicitly that the “pragmatic and functional approach” was ALSO of use in determining the intensity with which reviewing courts should be approaching decisions in the discretionary section of the spectrum between pure questions of law and completely unfettered discretion.
Suresh v Canada (Minister of Citizenship and Immigration) (2002) 1 SCR 3 (Can.)
Facts: one of the issues at stake here was a ministerial discretion to deport someone who was a danger to the security of Canada even where there was a possibility that that person’s “life, liberty and security of the person” would be in serious jeopardy in the country of his origin by reason of the serious prospect of torture.
Issue: what standard of review should be given to the Minister’s decision on whether the refugee faces a substantial risk of torture upon deportation. The Minister’s decision must ultimately conform to s.7 of the Charter.
Held: Appeal allowed. We conclude that in reviewing ministerial decisions to deport under the Act, courts must accord deference to those decisions. If the Minister has considered the correct factors, the courts should not reweigh them. Provided the s. 53(1)(b) decision is not patently unreasonable -- unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures -- it should be upheld. At the same time, the courts have an important role to play in ensuring that the Minister has considered the relevant factors and complied with the requirements of the Act and the Constitution.
Immigration Act –
s.53(1) ... no person who is determined under this Act or the regulations to be a Convention refugee, ... shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless ...
(b) the person is a member of an inadmissible class ... and the Minister is of the opinion that the person constitutes a danger to the security of Canada.
Standard of review:
-Ultimate question is always what the legislature intended (Pushpanathan). Here the language of the Act (the Minister must be “of the opinion” that the person constitutes a danger to the security of Canada) suggests a standard of deference.
(1) The presence or absence of a clause negating the right of appeal:
· The first factor suggests that Parliament intended only a limited right of appeal. Although the Minister's s. 53(1)(b) opinion is not protected by a privative clause, it may only be appealed by leave of the Federal Court, Trial Division (s. 82.1(1)), and that leave decision may not itself be appealed (s. 82.2).
o Thus, suggesting deference.
(2) the relative expertise of the decision-maker;
· The second factor, the relative expertise of the decision-maker, again favours deference. As stated in Baker "[t]he fact that the formal decision-maker is the Minister is a factor militating in favour of deference". The Minister, as noted by Lord Hoffmann "has access to special information and expertise in ... matters [of national security]".
(3) the purpose of the provision and the legislation generally; and
· The third factor again favours deference. This purpose, as discussed in Pushpanathan, is to permit a "humanitarian balance" of various interests -- "the seriousness of the danger posed to Canadian society" on the one hand, and "the danger of persecution upon refoulement"on the other. Again, the Minister is in a superior position to a court in making this assessment.
(4) the nature of the question
· Finally, the nature of the case points to deference. The inquiry is highly fact-based and contextual. As in Baker, the s. 53(1)(b) danger opinion "involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules", suggesting it merits a wide degree of deference.
-These factors suggest that Parliament intended to grant the Minister a broad discretion in issuing a s. 53(1)(b) opinion, reviewable only where the Minister makes a patently unreasonable decision.
“whether there is a substantial risk of torture if Suresh is deported is a threshold question. The threshold question here is in large part a fact-driven inquiry.
· It requires consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces, and more.
· It may also involve a reassessment of the refugee's initial claim and a determination of whether a third country is willing to accept the refugee.
· Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension.
· We are accordingly of the view that the threshold finding of whether Suresh faces a substantial risk of torture, as an aspect of the larger s. 53(1)(b) opinion, attracts deference by the reviewing court to the Minister's decision. The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not supported by the evidence or fails to consider the appropriate factors”
Human Rights issues and deferential standard:
-It is true that the question of whether a refugee constitutes a danger to the security of Canada relates to human rights and engages fundamental human interests.
-However, it is our view that a deferential standard of ministerial review will not prevent human rights issues from being fully addressed, provided proper procedural safeguards are in place and provided that any decision to deport meets the constitutional requirements of the Charter.
-We shall now consider two pre-Baker judgements on review for taking account of irrelevant factors (Sheehan) and wrongful purpose (Shell Canada).
Re Sheehan and Criminal Injuries Compensation Board (1975) 52 DLR (3d) 728
Facts: The respondent an inmate at the Kingston Penitentiary, had claimed compensation for injuries suffered during a riot at the jail. The Board had dismissed the claim, saying it considered the following circumstances relevant -- (1) if the respondent had not committed criminal acts himself he would not have been in the place where he was injured; (2) the injuries were suffered in a federal prison, outside the control of the Ontario government; (3) the respondent had not made any other attempts to obtain compensation.
Held (first court): The appeal allowed. I have come to the conclusion that none of the three circumstances considered by the Board were relevant. I conclude that the Court may properly review the decision of the Board in this case and that the matters considered by the Board were not relevant. In the circumstances the decision of the Board will be quashed and the matter remitted to the Board for consideration.
Held (Ontario CA): In my opinion the Divisional Court erred when it considered that its task was to determine if the said circumstances were relevant. In the light of the discretion vested in the Board to have regard to all circumstances which it considered relevant so long as it acted in good faith, the decision of the Board as to what considerations are relevant are unchallengeable
Law Enforcement Compensation Act (1970) –
5. In determining whether to make an order for compensation and the amount thereof, the Board may have regard to all such circumstances as it considers relevant, including any behaviour of the victim that directly or indirectly contributed to his injury or death.
· While the foregoing might have been a proper expression of the powers of the Board had it been directed to regard all relevant circumstances, by s. 5 the Board was given the right and duty to make compensation when, in its discretion, it deemed fit to do so and in reaching its decision the Act states that the Board is to be the judge of that which is relevant.
· With respect I do not construe the Act as authorizing the Court to review the correctness of the Board's decision made within the scope of its authority. The Legislature has expressly assigned to the Board and not to the Courts the discretionary authority to grant or deny compensation.
Shell Canada Products Ltd. v Vancouver (City) (1994) 1 SCR 231 (BC)
Facts: In 1989 the Council of the City of Vancouver passed two resolutions: first, not to do business with Shell Canada and Royal Dutch/Shell as long as Shell continues to do business in South Africa; and second, to declare the City a “Shell Free” zone until Shell divests from SA.
Issue: was the Council acting for improper purposes?
Held (majority): the Vancouver Charter places territorial limits on the Council and the Council’s purpose was ultra vires the Charter. Any powers implied from their general language must be restricted to municipal purposes and cannot extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality.
· Court took a narrow construction of municipal discretion.
· ... the exercise of a municipality's statutory powers, whatever the classification, is reviewable to the extent of determining whether the actions are intra vires.
· I therefore agree with the trial judge that the respondent was seeking to use its powers to do business "to affect matters in another part of the world", a purpose which is directed at matters outside the territorial limits of the City.
· So far as the purpose of the Vancouver Charter is concerned it is perhaps best expressed in s. 189, which provides that "Council may provide for the good rule and government of the city". In this regard its purpose does not differ from the purpose generally of municipal legislation which, as stated above, is to promote the health, welfare, safety or good government of the municipality. This places a territorial limit on Council's jurisdiction.
McLachlin J (dissenting): I am satisfied that in any event, the motives of the City of Vancouver cannot be said to have exceeded the powers which the Legislature has conferred on it. I cannot agree with my colleague that the phrase "good rule and government of the city" places a territorial limit on the factors which Council may consider in making decisions which are within its express power to make. The phrase is capable of encompassing matters outside the City's boundaries, provided they relate to the welfare of its citizens.
A. The Availability and Standard of JR:
1) Are the resolutions subject to judicial review:
· The assumption that government procurement is immune from judicial review rests on the traditional view that contract law is wholly in the realm of private law
· Against allowing judicial review of the purchasing power of governments is the argument that these are matters of private law. According to the private law of contract, each person, individual or corporate, has the right to contract with whom it chooses, and on the terms it chooses.
· On balance, it is my view that the doctrine of immunity from judicial review of procurement powers should not apply to municipalities. If a municipality's power to spend public money is exercised for improper purposes or in an improper manner, the conduct of the municipality should be subject to judicial review.
2) The proper scope of judicial review:
2 different approaches to construction of municipal powers:
(i) The Narrow Construction:
Merritt v City of Toronto – Municipal corporations, in the exercise of the statutory powers conferred upon them to make by-laws, should be confined strictly within the limits of their authority, and all attempts on their part to exceed it should be firmly repelled by the Courts.
(ii) the liberal approach:
Re Howard and City of Toronto – What is or is not in the public interest is a matter to be determined by the judgment of the municipal council; and what it determines, if in reaching its conclusion it acted honestly and within the limits of its powers, is not open to review by the Court.
Kuchma (SCC) – Upon the question of public interest, courts have recognized that the municipal council, familiar with local conditions, is in the best position of all parties to determine what is or is not in the public interest and have refused to interfere with its decision unless good and sufficient reason be established.
-The weight of commentary tends to be critical of the narrow approach, supporting instead a more generous, deferential approach:
(i) it adheres to the fundamental axiom that courts must accord proper respect to the democratic responsibilities of elected municipal officials and the rights of those who elect them.
(ii) aid the efficient functioning of municipal bodies and avoid the costs and uncertainty attendant on excessive litigation.
(iii) keeps with more flexible and deferential approach the Court has adopted in cases of JR of administrative agencies.
B. Were the resolutions beyond the City’s powers?:
· "the City has full power to engage in any commercial, industrial or business undertaking": s. 137(1).
· The Resolution not to do business with Shell until it stops trading with South Africa, clearly can be defended under the power of the City to engage in commercial and business activities. The City needs fuel. Fuel may be purchased from a variety of firms. This means that the City must of necessity discriminate between suppliers of fuel. The City and its agents doubtless make thousands of similar decisions each month, without any suggestion that the City must justify the reason why it chooses one firm over another.
· Thorne's Hardware Ltd. v. The Queen – "governments may be moved by any number of political, economic, social or partisan considerations". He went on to state that as a general rule the motives of governments enacting subordinate legislation should not be inquired into.
· Mounterbrooke Inc. v. City of Montreal – it has been held that in the absence of fraud, corruption or oppression, courts will not look behind a by-law to learn the motive.
· The term "welfare of the citizens", it seems to me, is capable of embracing not only their immediate needs, but also the psychological welfare of the citizens as members of a community who have an interest in expressing their identity as a community. Our language recognizes this: we speak of civic spirit, of city pride.
· The Council is to "provide for the good rule and government of the city": s. 189. These words are not restricted to the provision of services. They are broad enough to encompass expression of community concerns about what is happening outside the community's boundaries. Collective expression through elected representatives may be seen as a proper function of "government".
FAILURE TO CONSIDER RELEVANT FACTORS:
-The previous 2 cases involved challenges to an agency’s exercise of discretion on the ground that it took into consideration a factor that was not legally relevant or that it was pursuing some improper purpose.
-Failing to take into consideration a relevant factor is equally a basis for impugning the vires of an agency’s exercise of discretion, although there is some doubt its scope.
-An exercise of discretion will therefore be ultra vires only if the agency has overlooked a factor that its enabling statute expressly, or more usually, impliedly, obliged it to consider.
-In the aftermath of Baker, it is now clear that international law (including unincorporated ratified treaties) will have to be taken into account in the exercise of statutory and prerogative powers.
Oakwood Developments Ltd. v Rural Municipality of St Francois Xavier (1985) – a municipality had refused a developer permission to subdivide land for residential development because of the danger of flooding. However, the council had refused to read an engineer’s report that described measures that could be taken to avoid the problem.
Held: the refusal of permission in this case was ultra vires because the municipality had failed to consider evidence that was highly material to its legitimate concerns.
DISCRETION AND THE CHARTER, UNDERLYING PRINCIPLES OF THE CONSTITUTIONAL, AND INTERNATIONAL LAW
-Before the Charter, in the absence of express words or necessary implication in a statute, it was presumed that the legislature did not intend a discretion to be exercised so as to curtail basic liberties.
-The Charter improved the protection of individual rights previously provided by the common law.
-As a discussion of the relationship between administrative law and constitutional law with respect to the control of discretionary power and the restrictions of fundamental rights:
Slaight Communications Inc. v Davidson (1989) 1 SCR 1038
PRINCIPLE: an adjudicator may order a remedy which violates the Charter, but saved by s.1
Facts: Q107 employee, Davidson, was dismissed and it was held to be similar to a wrongful dismissal. The employer did not like him. The adjudicator ordered that the employer pay compensation (positive order) and write a letter which only stipulates facts (negative order), such as Davidson’s sales record in order to protect him from the employer writing something bad about Davidson.
Issue: does the arbitrators remedy violate the Charter?
Held: In conclusion, I am of the opinion that both of the adjudicator's orders at issue (the positive order and the negative order) infringe s. 2(b) but are saved by s. 1.
-Besides the Charter, other underlying constitutional principles as well as international law may be relevant to the exercise of discretionary power:
Lalonde v Ontario (Commission de restructuration des services de santé) (2001) 56 OR (3d) 505
PRINCIPLE: unwritten constitutional principles must be considered by Commissions.
Facts: As part of massive restructuring of health care services in Ontario, the Commission ordered the Montfort Hospital in Ottawa to downsize dramatically. The hospital, Ottawa’s only francophone hospital, sought JR of this decision alleging that the order violated an unwritten principle of the Constitution, the protection of minorities (as stated in Secession Reference).
Issue: did the Commission’s omission to consider the protection of minorities amount to a violation?
Held: We conclude, accordingly, that the Commission's directions must also be quashed on the ground that, contrary to the constitutional principle of respect for and protection of minorities, in the exercise of its discretion, the Commission failed to give serious weight and consideration to the linguistic and cultural significance of Montfort to the survival of the Franco-Ontarian minority.
· Where constitutional and quasi-constitutional rights or values are concerned, correctness or reasonableness will often be the appropriate standard (Baker).
· If the values of an international convention not adopted in statute form by Parliament have a bearing on the validity of the exercise of ministerial discretion (Baker), it must be the case that failure to take into account a fundamental principle of the Constitution when purporting to act in the public interest renders a discretionary decision subject to judicial review.
· The Commission was required by statute to exercise its powers with respect to Montfort in accordance with the public interest. In determining the public interest, the Commission was required to have regard to the fundamental constitutional principle of respect for and protection of minorities.
NOTE: the court emphasizes the case involved review of administrative discretion, not a challenge to a statue.
-Could the Ontario government achieve the same result by legislating the closure?
-Would review have also been available if the Commission took notice of the protection-of-minorities and still arrived at the same conclusion of closure?
DELEGATED LEGISLATION:
-We have so far focused on the individual exercise of discretion.
-Equally important as an administrative tool is the power, frequently delegated by stature, to make rules of more general application.
-This is called delegated legislation.
-Delegated legislation, like other exercises of discretion, is subject to JR on the grounds of ultra vires.
-Courts review delegated legislation passed by municipalities, generally in the form of bylaws.
-In particular, the courts have historically employed the concept of abuse of power to develop various categories where bylaws would be subject to closer scrutiny than delegated legislation passed by Cabinet or individual ministers.
UNREVIEWABLE DISCRETIONARY POWERS?
PREROGATIVE POWERS AND NON-JUSTICIABILITY
Operation Dismantle Inc. v Canada (1985) 1 SCR 441 (Can.)
PRINCIPLE: prerogative powers are reviewable.
Facts: Canada allowed the US to test armed missiles in Canadian airspace. Operation dismantle Inc. sues govt arguing that the decision was invalid because it violated their s.7 rights, Canada’s participation in program makes it more likely that we get attacked or involved in a nuclear war.
Held: argument failed because it is based on too many contingencies and difficult to prove link between the s.7 danger and the testing program => no reasonable cause of action. Not a matter for the court, it involves moral and political considerations.
· It is precisely this link between the Cabinet decision to permit the testing of the cruise and the increased risk of nuclear war which, in my opinion, they cannot establish.
Prerogative powers are reviewable:
· No reason to distinguish between cabinet decisions made pursuant to statutory authority and those made in the exercise of the royal prerogative, therefore they both fall within the ambit of the Charter.
· Prerogative powers are subject to the Charter.
Non-justiciability:
· ... these kinds of issues are to be treated as non-justiciable not simply because of evidentiary difficulties but because they involve moral and political considerations which it is not within the province of the courts to assess.
· it seems to me, there must be a strong presumption that governmental action which concerns the relations of the state with other states, and which is therefore not directed at any member of the immediate political community, was never intended to be caught by s. 7 even although such action may have the incidental effect of increasing the risk of death or injury that individuals generally have to face. ... This is not to say that every governmental action that is purportedly taken in furtherance of national defence would be beyond the reach of s. 7. If, for example, testing the cruise missile posed a direct threat to some specific segment of the populace -- as, for example, if it were being tested with live warheads -- I think that might well raise different considerations.
· the facts alleged in the statement of claim, even if they could be shown to be true, could not in my opinion constitute a violation of s. 7.
Black v Canada (Prime Minister) (2001) 54 OR (3d) 215 (CA)
PRINCIPLE: the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals (HL, Civil Serivce Unions). Confirms prerogative powers subject to JR.
Facts: Conrad Black seeks JR of PM’s recommendation to the Crown not to grant him peerage.
Held: peerage does not affect one’s rights, it is a gift from the UK government, therefore the decision is not reviewable/not justiciable even if there is evidence that PMs decision was influenced by bias or discrimination.
· confirms that prerogative powers are reviewable and we won’t distinguish laws regarding their source.
o Q becomes – does the prerogative right in question effect individual rights?
· the source of the power, statute or prerogative, should not determine whether the action complained of is reviewable.
o if the subject matter is ‘amenable to the judicial process’ it is reviewable and it is amenable to the judicial process if it affects the rights of individuals.
· results oriented decision – ignored damage to his reputation.
· the PM’s exercise of the honours prerogative is not judicially reviewable; refusal to grant an honour is far removed from the refusal to grant a passport or a pardon, where important individual interests are at stake; No Canadian citizen has a right to an honour nor a legitimate expectation of receiving an honour.
Public Interest Immunity: Cabinet Documents, the Common law and legislation
· Claims to public interest immunity are subject to JR. The judge will balance the public interest in maintaining the confidentiality of the document against the public interest in the due administration of justice.
· In the absence of fraud or some other extreme circumstances, the governmental power to decide whether to allocate public money to fund projects or organizations seems not to be subject to review in the courts at all.
-Challenging the legality of government funding decisions by invoking the Charter:
Native Women’s Assn. Of Canada v Canada (1994) 3 SCR 637 (Can.) – the appellants had refused direct funding by the government to enable them to participate effectively in the process of constitutional consultation that preceded the Charlottetown Accord. Argued infringement of s.2(b) and the equality right guaranteed by s.15, since the govt had provided funding to male-dominated aboriginal organizations, and its guarantee of non-discrimination on the ground of gender.
Held: “it cannot be said that every time the Government of Canada chooses to fund or consult a certain group, thereby providing a platform upon which to convey certain views, the Government is also required to fund a group purporting to represent the opposite point of view. ...the ramifications on government spending would be far reaching indeed”.
THE “PRIVATE” POWERS OF PUBLIC AUTHORITIES
-In addition to the more obvious government powers, generally conferred by statute, that public bodies exercise, public bodies also usually have the capacity to enter into contracts and to own and manage property.
-Sometimes, these powers are expressly granted, or their exercise is regulated, by statute, and the public authority must observe the statutory limits imposed.
-Often, the powers are implied in the body’s constitutive statute.
-In the exercise of the powers of contract and property ownership, the liability of public bodies for breach of contract and for tort is determined for the most part by the general law, without regard to the public or governmental character of the power.
-An important question that has not yet been fully explored by the courts is the extent to which the exercise of these “private” powers is also subject to review on public law grounds and, in particular, for abuse of discretion.
-The principle theoretical objection to the extension of the principles of administrative law to decisions taken by public authorities in their “private” capacity as contracting party or property owner has been the strong belief that public bodies should be subject to the same law as private individuals.
-On the other hand, it can be said that since public bodies enjoy powers of contract and property, not to advance their own interest but for the benefit of the public, it is mistaken to assume that the exercise of these powers should be subject only to the law that was developed to regulate the conduct of private individuals acting on their own behalf.
-There is also a public interest in ensuring that any procedures prescribed by the legislature are observed and that the contracting process is calculated to result in the making of the “best” decision.
-Should an agency be able to escape judicial surveillance by choosing to proceed by contract rather than by unilateral order?
-How far should the exercise of government contracting power be brought within the scope of JR on normal administrative law grounds?
.