Canadian Administrative LAW: Procedural or Substantive?
Canadian Administrative LAW: Procedural or Substantive?
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Notice
Notice
• The overarching requirement of the duty of fairness is the
idea of reasonableness. Canada v. Mavi, 2011 SCC 30
• General rule:
• Issue: those who sponsor foreign nationals must undertake to cover the cost of
“[N]otice must be adequate in all circumstances in order to afford to every benefit provided as social assistance to the sponsored family member. To
those concerned a reasonable opportunity to present proofs and what extent must the government notify sponsors before certifying the debt and
arguments, and to respond to those presented in opposition.” registering it with the FC to collect?
Disclosure
Notice • Concept of disclosure well known in the context of the criminal law.
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Disclosure Disclosure
1657575 Ontario Inc. v. Hamilton (City), 2008 ONCA 570 Pritchard v. Ontario (Human Rights Com.), 2004 SCC 31
• Hamilton passed by-law evidencing intention to reduce adult entertainment parlours. Mechanism: issuer of licence
can recommend to city council’s licensing committee that license be suspended or revoked for non-use. Triggers • Facts: P filed a HR complaint with the Human Rights Commission, which
hearing. exercised its discretion not to deal with the compliant on the basis that it
was frivolous or vexatious. In bringing the JR, P asked for a copy of a
• Here, appellant’s parlour subject to recommendation, but did not provide grounds, contrary to by-law. legal opinion provided to the Commission.
• CA:
• Issue: whether the opinion prepared by the Commission's in-house
• Disclosure is a basic element of natural justice at common law and, in the administrative context, procedural counsel is subject to solicitor-client privilege?
fairness generally requires disclosure unless some competing interest prevails. The controlling idea: knowing
the case that one has to meet.
• Court: Yes. Solicitor-client privilege arises where: (i) a communication
• The grounds identified simply referred to a series of largely irrelevant documents and sections of the by-law between solicitor and client; (ii) which entails the seeking or giving of
relating to the committee's process and procedures. It would have been impossible for the appellant to extract legal advice; and (iii) which is intended to be confidential by the parties.
from this notice any meaningful understanding of the grounds for the recommendation to revoke its licence. In
fact, the notice itself was misleading.
• Applies with equal force in the in-house, admin or government context.
• Court relied on the fact that the by-law made disclosure mandatory twice.
• Note: “How the decision maker would have responded to any of this changed conduct is irrelevant. It is not for this • Note: Court leaves open the possibility to a statutory override.
court to speculate as to whether the result would have been the same had there been timely and adequate
disclosure.”
Disclosure Disclosure
Mission Institution v. Khela, 2014 SCC 24 • Statutory requirement that the DM give the prisoner “all the
information considered”
• After allegedly arranging a hit on a fellow inmate, inmate was
transferred from a medium security to a maximum security • Need to balance disclosure obligations with the needs of the
federal penitentiary. He challenged that decision by way of authorities in particular circumstances or the rights of other
application for habeas corpus made to provincial superior court, persons.
rather than through statutory grievance process.
• Information can be vetted by a court to determine its materiality
• What was not disclosed: information about the reliability of the and relevance and may be disclosed only to counsel
sources, the specific statements made by the sources, the
scoring matrix that informed Khela’s classification. • Duty of fairness satisfied if a party has sufficient information to
make informed submissions in regard to a particular matter.
• Issue: extent of disclosure required when there is a need to Here, Khela wasn’t given enough information to know the case
protect informant confidentiality he had to meet.
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• When will the common law require that an oral hearing be provided? • No part of the hearing should take place without all parties
where a decision depends on findings of witness credibility present unless the party has voluntarily given up their right to
attend.
• SCC decision in Singh v. Minister of Employment and Immigration, in
which the Court held that a person claiming Convention refugee status • A tribunal may proceed in the absence of a party where:
was entitled to an oral hearing. That was because s. 7 right was
engaged, and refugee status depended on whether claimants had a
“well-founded fear of persecution” in their homeland, and this was not
something that could be sorted out on the basis of a paper hearing. • a party has been served but does not attend
• a party continues to disrupt a proceeding
• See Masters v. Ontario and Khan v. University of Ottawa.
• a party “walks out” in protest
• Where legislation does not preclude an oral hearing, however, recourse • the evidence is of a particularly sensitive nature
to constitutional and quasi-constitutional remedies will not be
necessary. The common law may require that an oral hearing be held. (rare)
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• Section 7 was engaged because of the negative impact on • General rule - parties must be afforded a reasonable opportunity
psychological integrity of J.G. This negative impact need not rise to the to present their cases.
level of “nervous shock” or “physical illness,” but must be greater than
“ordinary stress or anxiety.”
• In Innisfil (Township) v. Vespra (Township), Justice Estey emphasized
that the right of cross-examination is not to be withheld on the basis of a
• Not in accordance with fundamental principals of justice given: judgment by the tribunal that it is of limited utility:
complex hearing involving extensive evidence, cross-exams, and
objections; without counsel appellant could not participate effectively
and appellant had already been separated from children for one year “The decision to exercise the right is solely that of the holder of
and gov. was seeking six more months, the right. He, of course, must exercise it at his peril as is the
case in any other administrative or judicial proceeding where
such a right arises.”
• Also, statutes may codify timelines. See s. 21.1(2), SPPA. • Also, evidentiary concerns aside, delay may result in a denial of PF or abuse of process (e.g.
significant psychological harm, or stigma). The delay must be “clearly unacceptable” and
amount to “significant prejudice.”
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• In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of • Contemplates flexibility in complying with the duty to give reasons –
procedural fairness will require the provision of a written explanation for a decision. The provide “some form of reasons” and, as a result, reasons may vary in
strong arguments demonstrating the advantages of written reasons suggest that, in cases length and formality in different circumstances.
such as this where the decision has important significance for the individual, when there
is a statutory right of appeal, or in other circumstances, some form of reasons should be
required. • Indeed, in Baker the Court accepted that informal notes prepared by one
immigration officer for the advice of another satisfied the duty.
• Reasons are not required for all decisions; rather, they are required in “certain
circumstances.” • Two main concerns on procedural review:
1. Reasons are required if a particular decision has “important significance” for
an individual, because public actors demonstrate respect for those affected by
their decisions by justifying the decisions they make. 1. Are reasons required? There may be a failure to provide reasons in
circumstances in which a court concludes that reasons were
2. Reasons are also required if a statutory appeal process exists to facilitate the
required.
workings of that process.
2. Were the reasons provided adequate? Questions may arise as to
• It is difficult, if not impossible, to determine whether to appeal a particular decision and which the adequacy of reasons proffered in particular circumstances.
arguments to make if no explanation is provided for that decision.
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• Facts: Alberta IPC received complaint that teachers’ assn. disclosed private • At least this much is clear: a wholesale failure to provide reasons
information. At the time, PIPA required the IPC to complete an inquiry
within 90 days unless it had notified the parties it needed longer. The IPC will likely constitute a breach of the duty of fairness.
took 22 months to extend the time to complete inquiry. Seven months later
IPC adjudicator found assn. breached PIPA.
• Following Newfoundland Nurses, however, the Court will not be
• Issue: on JR, the assn. argued for the first time that the IPC had no concerned with the adequacy or sufficiency of reasons in
jurisdiction given the failure to extend 90-day limit on time.
determining whether the duty to provide reasons has been met.
• Court:
• Found an “implied decision” on the basis of the IPC’s past case law. Note: your
reasons may lie elsewhere. • The focus will be on the substantive question: do the reasons,
such as they are “allow the reviewing court to understand why the
• Emphasized that courts are not to reformulate a tribunal’s reasons in order to tribunal made its decision and permit it to determine whether the
render them reasonable.
conclusion is within the range of acceptable outcomes”?
• It may sometimes be necessary to return a decision in order to allow a decision-
maker to provide reasons on a particular matter, thereby allowing the Court to
defer on an informed basis if the decision is reviewed subsequently.
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• If the statute is NOT a complete procedural code or is there room or need • Bias stems from individual conduct by the decision maker, like
to supplement with the common law then consider: attitudinal bias or prejudgment, pecuniary interest, past conduct
etc.
1. Right to be heard
• Notice, Disclosure, Oral hearings, Right to be Present, Right to
• Bias also stems from the institution itself – the decision making
counsel, Rights to call evidence, Timeliness and delay, Duty to give
reasons body as a whole (the tribunal), and its insufficient
independence or institutional bias.
2. Right to an unbiased decision maker:
• Issues re: Individual bias • BUT be aware that it may be difficult to challenge on the basis of
• Issues: re: Institutional bias / Insufficient independence institutional bias if the statute creates the administrative regime -
common law cannot prevail over a statute.
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Unreasonably aggressive questions or critical commentary Marques v. Dylex Ltd., (1977), 81 DLR (4th) 554 (Div. Ct.)
• The employer challenged a decision of the Ontario Labour Relations Board to certify a
Baker union because one of the members of the board had been a lawyer of a firm that acted
for a union that became part of the union that was certified (even though the board
• A "reasonable apprehension of bias" that Officer Lorenz’s decision was based not on the evidence but on the
facts that Baker was a single mother with several children and had psychiatric illness, and thus would be
member had no contact with this specific client). The Court did not find a RAOB despite
“tremendous strain on our social welfare systems for (probably) the rest of her life.” the connection and previous association. There was no RAOB because the people
chosen to be chairs will have labour relations expertise and will likely know the parties.
Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856 In this case the court found that context is important.
• Adjudicator demonstrated “open disbelief” of appellant, and cross-examined him about whether he was See also Guilmoutdinov v. Ontario College of Teachers, 2009 HRTO 2130 (CanLII)
associated with a terrorist organization
S.G. v. Criminal Injuries Compensation Board, 2016 ONSC 7485 (Div. Ct.) • Tribunal members are selected because they have experience, knowledge and training of
the issues they adjudicate. That may include representing parties in similar matters.
• “the member asked a number of questions that reflected rape myth stereotypes about the reactions of victims Tribunal finds that reasonable and well-informed person would understand the change in
of sexual assault. For example, he repeatedly asked why the appellant had not screamed or run away, both
questions that reflect rape myths that would be an improper line of cross-examination in a criminal trial.” role that occurs when advocate becomes adjudicator.
• “the behaviour of the member during the hearing, coupled with the tone and line of questioning, gives rise to
concerns about the fairness of the proceeding. He was aggressive in tone, and he demonstrated impatience,
if not skepticism during the appellants testimony.” However, see Terceira, Melo v. Labourers International Union of North America, 2013
ONSC 3344 (Div. Ct.)
• OLRB decision overturned given that the board’s Vice-Chair had previously advised on
the parties on very similar, if not identical, issues.
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• In Committee for Justice and Liberty, the National Energy Board had a hearing
United Enterprises Ltd. Saskatchewan (Liquor and to consider competing applications for a pipeline. The Chairman had previously
Gaming Licensing Commission), [1997] 3 WWR 497 been part of a group that had set up one of the companies competing for the
pipeline. In determining whether the chairman’s prior involvement in the group
• Court found ROAB given the “repetition and cumulative raised a reasonable apprehension of bias, The Court considered:
effect” of the manner in which the panel dealt with • The nature and degree of prior involvement. In this case it had been
VERY close (it was a small study group)
respondent’s counsel, including arriving together, • Recency or the time past since the prior involvement. Only two years had
refferrign to him by first name, and extending an passed since the chairman left the study group.
invitation to attend a BBQ.
• The relationship between the Chair and the company was personal. It was also
extensive, specific, and recent.
Gedge v. Hearing Aid Practitioners Board, 2011 NLCA 50
• Court of Appeal found a ROAB given the relationships • In some cases the statute may actually authorize prior involvement. For
example, in Brosseau v. Alberta Securities Commission, [1989] 1 SCR 301 the
between the tribunal’s three members and the applicant: Court found that there can be overlapping functions if there is statutory
the applicant’s primary competitor, the girlfriend of a authorization.
former business partner, and a member of the public.
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• The general rule is that any direct interest – pecuniary or otherwise – will give rise to the Other Examples of Possible Individual Bias
disqualification of a decision maker.
• Meets with one party in the absence of other parties
• In the 1984 FCA case of Energy Probe and Canada (Atomic Energy Control Board) the
court stated that the test in regards to a pecuniary interest is that it must be “sufficiently • Has a friendship with someone with invested interest in the case
certain to arise”
• Is related to someone with invested interests in the case
• The Board was deciding whether to renew Ontario Hydro facility. Energy Probe (an • Has financial interest in the outcome of the case
interest group) claimed that Olsen (on the Board) was biased – he owned a cable
company who sold cables to Ontario Hydro. The issue was whether there was a RAOB • Is part of an association with invested interest in the outcome
on the basis of a direct pecuniary interest?
• Shares opinions before evidence and arguments are heard
• The court held there was no direct pecuniary interest. For a direct pecuniary interest to • Persistently favours one party during the hearing process
constitute bias, there has to be a fairly serious level of certainty that the decision maker
will benefit or suffer economically before there will be found to be a direct link and an • Expresses a strong like or dislike for a party/witnesses
automatic disqualification.
• Has been in litigation against a party/witness in a proceeding
• Any direct interest – pecuniary or otherwise – will give rise to disqualification
• Has had a significant professional relationship with a
• Energy Probe party/witness
• Matsqui Indian Band
• Burnbrae Farms • Accepts gifts or favours from a party or witness
• Moskalyk‐Walter
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• The Court of Appeal found that the Tribunal had this discretion because the • Exceptions and limits:
Tribunal has the powers of the Director, and the statute uses the word “may” in • If a member of a panel cannot complete the hearing, the other
describing the mechanisms available to the Director in recovering an members may decide
overpayment.
• Parties may agree to have a new member read transcripts/agreed
statements of the evidence to complete the hearing
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• Cdn Telephone Employees • A lawyer could be involved in all stages, including referral,
• General “directives” by Human Rights Commission in relation to prosecution, and preparation of reasons
pay equity were authorized by statute to have force of law
• The same director could both decide that a hearing was to be held
• This does not compromise independence since a Tribunal is and then hear the case
bound to follow the law
• Earlier decisions had found that mandatory guidelines violated • No apparent safeguards
independence where they were not statutorily permitted
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• However, administrative independence is not guaranteed • Judges also have adjudicative independence - the ability of a decision-
under the constitution like the courts, and can be ousted maker to decide, free of inappropriate interference by other decision-
makers. Such inappropriate interference may include, for example,
by statutory language. pressure to decide a certain way or substitution of another’s decision for
one’s own.
• Administrative tribunals do not have to meet the same • The requisite level of institutional independence (i.e., security of
degree of independence as the courts do. tenure, financial security and administrative control) will depend on
the nature of the tribunal, the interests at stake, and other indices of
independence such as oaths of office.
• The methodological approach taken by the courts when the
independence of an administrative tribunal is challenged
consists of applying the guarantees of tribunal
independence in a flexible way to account for the functions
performed by the tribunal under scrutiny.
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Lack of Independence
Lack of Independence – Administrative Control
– Administrative Control
• Alex Couture – Competition Tribunal
• Administrative control concerns the manner in which the affairs of the court /
tribunal are administered/ • Lower court concerned because Governor in Council sets
rate and privy council received performance appraisal
• There should be minimal government control in, for example, allocation of • Appeal court satisfied that policy creates enough distance –
resources or assignment of cases. there was an advisory group for salary
• Tribunals generally have control over cases, but resource issues are closer to • Katz
government.
• Lawyers appointed to stock exchange disciplinary committee
Québec Inc. v. Quebec (Régie des permis d’alcool) – they had no fixed terms and no guarantee of pay
• SCC distinguished self‐regulatory function from the
• The respondent in Régie challenged the board’s administrative control. It argued adjudicative function in Matsqui, and focused on how tribunal
that there were so many points of contact between the liquor board and the actually functioned in practice
minister responsible for the board’s enabling legislation that the board’s institutional
• No evidence of arbitrary removal ‐‐ people sit until they resign
independence was threatened. Court held - administrative control was also
sufficient – it was not unusual for a minister to have many points of contact with a • No evidence of payment issues, no evidence of interference
tribunal under its responsibility. Court noted - no evidence had been provided to by executive – chairs selected by a manager, on rotation –
show that the minister could affect the decision-making process. Informed person would not be concerned about
independence
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Remedy for Breach of Procedural Fairness Remedy for Breach of Procedural Fairness
• In Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore • Cardinal remains good law and the Mobil Oil exception should
Petroleum Board, [1994] 1 SCR 202 the SCC endorsed the view: be rare.
“[a] distinction might perhaps be made according to the nature of the decision.
In the case of a tribunal which must decide according to law, it may be • Judicial review is concerned with deciding what the duty of
justifiable to disregard a breach of natural justice where the demerits of the fairness requires in the circumstances of a particular decision
claim are such that it would in any case be hopeless.”
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Standard of Review –
THE DUTY OF FAIRNESS: SUMMARY CHECKLIST
Procedural Fairness
• Although a successful application for judicial review on
fairness grounds will result in an order quashing a decision STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED
and requiring it to be made anew, nothing necessarily Are there any limitations on the application of the duty of
prevents the decision-maker from reaching the same fairness – when is a duty of fairness NOT owed
substantive decision.
STEP 2 – DETERMINE THE CONTENT OF THE DUTY OF
• However in Baker a new hearing was ordered which
FAIRNESS
resulted in a different outcome. What elements of fairness are required in the particular
case?
• Mavis Baker was subsequently granted the humanitarian and
compassionate exception she sought and was allowed to stay in
Canada. STEP 3 – WHAT IS THE REMEDY FOR A PROCEDURAL
• Whether or not a different result obtains on a rehearing, the BREACH?
consequences of a breach of the duty of fairness may be significant.
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