Canadian administrative law
Encyclopedia
Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies. That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers (ADMs) such as a board, tribunal, commission, agency or minister. The body of law is concerned primarily with issues of substantive review (the determination and application of a standard of review
) and with issues of procedural fairness (the enforcement of participatory rights). Administrative law concerns the statutes and rules of government operations. Courts ensure that ADMs observe the limits on the authority. Also, declaration and equitable injunction remedies exist.
. Superior Courts (known as Section 96 Courts) have an inherent power at common law to review any decision of an ADM. A judicial review
allows for the court to consider the entire decision-making process, including the process, the findings of fact and of law. The power of judicial review is found either in the enabling statute or by virtue of the common law. The common law powers are derived from the four original writs of certiorari
, prohibition
, mandamus
, and habeas corpus
.
Courts may also review a decision through a statutory appeal
when the review power is explicitly granted within the enabling statute that created the administrative body. Appeals are typically reviews for errors of law.
These powers are also frequently limited by privative clause
s or finality clauses within the enabling statute. A privative clause will declare the ADMs decision is "final and conclusive" and/or that the ADM has "exclusive jurisdiction" over the matter, effectively removing any power of review. As established in Crevier v. Quebec
(1981), the Constitution
requires that the courts be able to supervise errors of ADMs and so the legislature cannot completely oust them from that power, nor can an ADM completely replace a Superior Court.
which dictates the amount of deference that the court should give to the ADM. The decision and the evidence are reviewed based on the appropriate standard of review for the circumstances.
Determining the standard of review is a particularly contextual process and can vary based on the type of ADM or even the specific matter at issue. The modern method to determine the standard of review used to be known as the "pragmatic and functional approach" and is now known simply as the "standard of review analysis". Its purpose is to determine the amount of review that the legislature intended.
The determination is made based on four contextual factors:
None of the factors are determinative and will vary in significance based on the circumstances. Not all of these factors need be examined in a particular case. From these factors, and any other applicable contextual factors, the courts will determine which of two standards of review will be applied. Where deference was intended the courts will review the ADM on the basis of reasonableness
. Where little or no deference is intended the ADM will be reviewed on a standard of correctness
.
in Dunsmuir v. New Brunswick
, there are 2 standards of review:
Patent unreasonableness was the highest level of deference that the court could give to an ADM, prior to the Supreme Court's decision in Dunsmuir v. New Brunswick
on March 7, 2008. It meant that a decision had to be so egregious that it was patently unreasonable. This very high standard was almost impossible to meet. Now, only two standards remain: reasonableness and correctness.
, the right to be heard (audi alteram partem
) and right to be judged impartially (Nemo judex in sua causa
). These rights can be conveyed by the Canadian Charter, "umbrella" legislation, the ADM's constituting legislation, and the common law.
”When a public authority had promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty" - Old St. Boniface Residents Assn. Inc. v. Winnipeg
In this way the courts have found procedural fairness through a promise by an ADM. There are requirements for what constitutes a legitimate expectation though.
The test is:
According to CUPE v. Ontario (Minister of Labour); if the promise is clear, unambiguous and unqualified representation as to a procedure then it creates a legitimate expectation. This applies also to an established practice or conduct of a given ADM.
Legitimate exception will not apply when dealing with a legislative decision, promises that conflict with statutory duties, and substantive promises.
.
Where the circumstances satisfy the threshold test to invoke a duty of fairness a claimant will be entitled to certain participatory rights
including pre-hearing rights, such as rights related notice, disclosure, discovery, and delay, as well as hearing rights, such as rights related to the form of hearing, counsel, examinations, and reasons for judgment.
clarified administrative law in Canada in relation to both substantive matters (discretionary decision making) and procedural matters (procedural fairness).
The content of the duty of fairness depends on the type of right and the circumstances of the case. There are five factors that affect the content of this duty:
With respect to discretion, historically, the standard of review for discretionary decisions applied by the courts was that of correctness. However, this changed in Baker where the Supreme Court of Canada emphasized the awkward line between questions of law and discretion. The court recognized that the 'pragmatic and functional' approach, as outlined in Pushpanathan, should be applied when looking at issues of discretion. In addition, courts are able to apply a standard of reasonableness to discretionary decision making.
Baker has significant impact on taking into account relevant factors, irrelevant factors, and acting for an improper purpose.
Ask: What standard of review should the courts apply? This can be answered by looking at past case law. Starting with CUPE v. New Brunswick Liquor Corp. which introduced the 'Pragmatic and Functional approach' which consisted of three standards: correctness, reasonableness and patent unreasonableness . Subsequent cases reaffirmed this such as Bibault and Southam. The 'Modern Standard' of review was then approached in Pushpanathan v. Canada (Minister of Citizenship and Immigration)
which was affirmed in Baker. Recently there has been a new approach in Dunsmuir v. New Brunswick
where the Supreme Court eliminated 'patent unreasonableness' consequently leaving only correctness and reasonableness. The standard of review analysis must be analysed before judicial review.
To determine whether deference is owed to a decision, one must then look at the four factors mentioned above, namely: 1) Is there a privative clause or a right of appeal? 2) What is the level of expertise? 3) What is the purpose of the Act as a whole and the provision in particular? 4) The nature of the problem (question of law or fact)? Once a court has looked at these four factors, then they can apply one of the two standards of review - Correctness (no deference) or Unreasonableness.
Ask: Did the administrative body abuse or misuse their discretion? This can be answered by examining the factors determining the scope of the administrative bodies discretion: Expertise; nature of the decision; language of the provision and the legislation; whether the decision is polycentric; intention revealed by the statutory language. When there is more discretion left to the decision maker, there more reluctance for the courts to interfere.
Adding to this, is to ask: What type of abuse? This can be answered by looking at the Grounds for Review of abuse of discretion. As well as the question of is there delegated legislation and whether it is an unreviewable discretionary power (e.g. privileges - not reviewable; prerogative powers - reviewable)
Concerns the duty of fairness. (As mentioned above) There are two components to the duty of fairness: participatory rights and protection against bias.
Participatory rights - Should a duty of fairness be imposed? While in Cooper the courts recognized the duty of procedural fairness is not limited to the judicial process, they retreated from this proposition until it was resurrected in Nicholson and Knight. The fact that a decision is administrative and affects 'the rights, privileges or interests of an individual' is sufficient to trigger the application of the duty of fairness (Cardinal). As well, the fact that a decision maker does not act judicially does not mean that there isn't a duty to act fairly (Martineau). Subsequently, does it pass the threshold of procedural fairness? There are three factors for the existence of a general duty (Knight, as cited in Cardinal) 1) nature of the decision to be made; 2)relationship between that body and the individual; 3)effect of that decision on the individual's rights. There are some exceptions, one being in the case of emergencies. (Also, here one would see if the Statutory Powers Procedure Act would apply if in Ontario which you could apply a four part test: 1)Is there a statutory power of decision being exercised?; 2)Whether the empowering legislation expressly includes or excludes the SPPA (or relevant legislation); 3)Whether the tribunal is excluded under s. 3(2); 4) If the entity is not expressly excluded, whether an oral hearing would be required otherwise by law? (The SPPA will only apply if an oral hearing is required by law)Was notice given? Is discovery an issue? Is delay an issue? What is the type of hearing they are seeking? Such as an oral hearing (see Khan)where the right to an oral hearing is the highest when credibility is in issue. As well participatory rights are not going to ensure an oral hearing in every issue (Baker). Is the right to counsel in question? Is there a requirement for reasons to be provided?
Protection against bias - This is the second fundamental principle of procedural fairness - the affected parties have the right to a bias free decision. There are two types of bias: 1) Direct or pecuniary and 2) Reasonable apprehension of bias. The test for this is: What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude? (National Energy Board). Factors can include: Kinship, friendship, partisanship. Whether or not there is an apprehension of bias may depend on the degree of deference afforded a particular administrative actor.
1) Procedural
(Martineau)
Natural Justice
-applies to judicial/quasi judicial context
-right to notice/be informed
-impartiality and bias
Bias: personal, institutional,
institutional decision
Fairness
-applies non-judicial context
-Nicholson
-elements: right to know case, right to make Choice made by tribunal submissions, reasons of decision maker
-Factors affecting duty of fairness (Baker):
1)Nature of decision
2)Nature of Statutory scheme
3)Importance of decision
4) Legitimate expectations
5) choice made by tribunal
6) Charter S. 7
-Knight
2)Substantive (Error of law/fact/mixed)
-Ask if an error of law or of fact or mixed
- what is the standard of review? (Dunsmuir) (Knight)
- -Either: Correctness- less deference
Reasonableness – more deference
-Factors affecting choice of standard: (Dunsmuir, Baker)
1) Privitive clause (Could lean towards reasonableness)
2) Expertise
3) Interpreting Statute
4) Purpose of Statute
5) Nature of error
a. Law – less deference
b. Fact – more deference
-Also: Discretionary decisions which typically attract more deference
Procedural Fairness
1) Was the person owed procedural fairness? Identify the trigger for procedural fairness originating in Kinght
2) examine the content of procedural fairness with reference to the variables in Baker
3) natural justice and two important elements set out in Nicholson
4) go through rules of procedural fairness and see if apply
5) does the SPPA apply? Federal? provincial?
6) was there bias?
7) effect of breach of procedural fairness
8) what remedies are owed
Standard of review
In LAW, the standard of review is the amount of deference given by one court in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower...
) and with issues of procedural fairness (the enforcement of participatory rights). Administrative law concerns the statutes and rules of government operations. Courts ensure that ADMs observe the limits on the authority. Also, declaration and equitable injunction remedies exist.
Sources of law
The powers of an ADM are primarily created by statute, which is known as the "enabling statute". These powers are limited by the legislative authority of the enabling government provided under section 91 or 92 of the Constitution Act, 1867Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. Superior Courts (known as Section 96 Courts) have an inherent power at common law to review any decision of an ADM. A judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
allows for the court to consider the entire decision-making process, including the process, the findings of fact and of law. The power of judicial review is found either in the enabling statute or by virtue of the common law. The common law powers are derived from the four original writs of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
, prohibition
Prohibition
Prohibition of alcohol, often referred to simply as prohibition, is the practice of prohibiting the manufacture, transportation, import, export, sale, and consumption of alcohol and alcoholic beverages. The term can also apply to the periods in the histories of the countries during which the...
, mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
, and habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
.
Courts may also review a decision through a statutory appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
when the review power is explicitly granted within the enabling statute that created the administrative body. Appeals are typically reviews for errors of law.
These powers are also frequently limited by privative clause
Privative clause
In administrative law, a privative clause is a provision in a statute that tries to remove a court’s ability to review decisions of a tribunal . In the UK they are known as "ouster clauses"....
s or finality clauses within the enabling statute. A privative clause will declare the ADMs decision is "final and conclusive" and/or that the ADM has "exclusive jurisdiction" over the matter, effectively removing any power of review. As established in Crevier v. Quebec
Crevier v. Quebec
Crevier v. Quebec, [1981] 2 S.C.R. 220 is a leading Supreme Court of Canada decision in administrative law. The Court had to decide whether a Quebec-created Professionals Tribunal was unconstitutional due to being a "s. 96 court" according the Constitution Act, 1867, whose members can only be...
(1981), the Constitution
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
requires that the courts be able to supervise errors of ADMs and so the legislature cannot completely oust them from that power, nor can an ADM completely replace a Superior Court.
Substantive review
The courts' power of substantive review allows it to consider the content of an ADM's decision and decide whether is was sufficiently incorrect to warrant sending it back for reconsideration. Where a court has the power of substantive review it must undertake the review using a standard of reviewStandard of review
In LAW, the standard of review is the amount of deference given by one court in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower...
which dictates the amount of deference that the court should give to the ADM. The decision and the evidence are reviewed based on the appropriate standard of review for the circumstances.
Determining the standard of review is a particularly contextual process and can vary based on the type of ADM or even the specific matter at issue. The modern method to determine the standard of review used to be known as the "pragmatic and functional approach" and is now known simply as the "standard of review analysis". Its purpose is to determine the amount of review that the legislature intended.
The determination is made based on four contextual factors:
- the presence or absence of a privative clause or statutory right of appeal;
- the expertise of the tribunal relative to that of the reviewing court on the issue in question;
- the purposes of the legislation and the provision in particular; and
- the nature of the question law, fact or mixed law and fact
None of the factors are determinative and will vary in significance based on the circumstances. Not all of these factors need be examined in a particular case. From these factors, and any other applicable contextual factors, the courts will determine which of two standards of review will be applied. Where deference was intended the courts will review the ADM on the basis of reasonableness
Standard of review
In LAW, the standard of review is the amount of deference given by one court in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower...
. Where little or no deference is intended the ADM will be reviewed on a standard of correctness
Standard of review
In LAW, the standard of review is the amount of deference given by one court in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower...
.
Standards of review
Following the decision of the Supreme Court of CanadaSupreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in Dunsmuir v. New Brunswick
Dunsmuir v. New Brunswick
Dunsmuir v. New Brunswick, 1 S.C.R. 190; 2008 SCC 9, is the leading Supreme Court of Canada decision in Canadian administrative law on the topic of substantive review and standards of review...
, there are 2 standards of review:
Reasonableness
Reasonableness is the deferential standard that a court can give to an ADM. Where the decision is a matter of law, a mix of fact and law or a discretionary decision it is said that the decision is unreasonable where the decision is "not supported by any reasons that can stand up to a somewhat probing examination". In other words, it is unreasonable where "there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived."Correctness
Correctness is the least deference that court can give an ADM. The court will give no deference at all and will judge the decision on the basis of whether it is correct in law. A court may substitute its own opinion for that of the ADM.Previous Standards
Patent UnreasonablenessPatent unreasonableness was the highest level of deference that the court could give to an ADM, prior to the Supreme Court's decision in Dunsmuir v. New Brunswick
Dunsmuir v. New Brunswick
Dunsmuir v. New Brunswick, 1 S.C.R. 190; 2008 SCC 9, is the leading Supreme Court of Canada decision in Canadian administrative law on the topic of substantive review and standards of review...
on March 7, 2008. It meant that a decision had to be so egregious that it was patently unreasonable. This very high standard was almost impossible to meet. Now, only two standards remain: reasonableness and correctness.
Procedural fairness
Procedural fairness concerns the entitlement of rights during the deliberation of a case before an ADM. These rights flow from two principles of natural justiceNatural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
, the right to be heard (audi alteram partem
Audi alteram partem
Audi alteram partem is a Latin phrase that literally means "hear the other side" or "hear the alternative party"...
) and right to be judged impartially (Nemo judex in sua causa
Nemo judex in sua causa
Nemo iudex in causa sua is a Latin phrase that means, literally, no-one should be a judge in their own cause. It is a principle of natural justice that no person can judge a case in which they have an interest...
). These rights can be conveyed by the Canadian Charter, "umbrella" legislation, the ADM's constituting legislation, and the common law.
Legitimate Expectation
Legitimate Expectation of procedural fairness applies:”When a public authority had promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty" - Old St. Boniface Residents Assn. Inc. v. Winnipeg
In this way the courts have found procedural fairness through a promise by an ADM. There are requirements for what constitutes a legitimate expectation though.
The test is:
- A public authority makes a promises
- That promise is to follow a certain procedure
- In respect to an interested person
- They relied and acted upon that promise
According to CUPE v. Ontario (Minister of Labour); if the promise is clear, unambiguous and unqualified representation as to a procedure then it creates a legitimate expectation. This applies also to an established practice or conduct of a given ADM.
Legitimate exception will not apply when dealing with a legislative decision, promises that conflict with statutory duties, and substantive promises.
Duty of fairness
The common law imposes a duty of fairness in certain administrative proceedings. The duty can only be invoked where the circumstances satisfy a threshold based on three factors set out by the Supreme Court in Knight v. Indian Head School Division No. 19Knight v. Indian Head School Division No. 19
Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 is a leading decision of the Supreme Court of Canada on procedural fairness in Canadian administrative law...
.
- First, the nature of the decision must be sufficiently administrative or quasi-judicial. Decisions that are of a "legislative or general nature" which are based on broad policy issues rather points of law are not likely to warrant a duty of fairness. Furthermore, the decisions must be final in nature, not preliminary or interlocutory.
- Second, the relationship between the (public) body and the individual must be based on an exercise of power in pursuant to a statute (or prerogative power).
- Third, the decision must affect the claimant's rights, privileges or interests.
Where the circumstances satisfy the threshold test to invoke a duty of fairness a claimant will be entitled to certain participatory rights
Audi alteram partem
Audi alteram partem is a Latin phrase that literally means "hear the other side" or "hear the alternative party"...
including pre-hearing rights, such as rights related notice, disclosure, discovery, and delay, as well as hearing rights, such as rights related to the form of hearing, counsel, examinations, and reasons for judgment.
Content of Duty of Fairness: Baker Test
Baker v. CanadaBaker v. Canada (Minister of Citizenship and Immigration)
Baker v. Canada , [1999] 2 S.C.R. 817 is a leading Canadian administrative law decision of the Supreme Court of Canada. The Court provided guidance on the standard of judicial review of administrative decisions...
clarified administrative law in Canada in relation to both substantive matters (discretionary decision making) and procedural matters (procedural fairness).
The content of the duty of fairness depends on the type of right and the circumstances of the case. There are five factors that affect the content of this duty:
- The nature of the decision. It asks whether the decision is more for the purpose of resolving dispute, protecting individual rights or some other judicial purpose rather than a decision that balances many interests and primarily considers policy.
- The importance of the interest at stake in the decision relative to other interests.
- The statutory scheme under which the decision is made. This primarily focuses on whether the decision is final and conclusive or if whether it is preliminary or if there is a right of appeal.
- The legitimate expectations of the parties based on whether there were any representations by word or conduct that lead the parties to believe there was some type of procedural protection.
- The procedural choices available to the ADM. The ADM must be accorded some deference to its practices and policies necessary to accomplish its mandate.
With respect to discretion, historically, the standard of review for discretionary decisions applied by the courts was that of correctness. However, this changed in Baker where the Supreme Court of Canada emphasized the awkward line between questions of law and discretion. The court recognized that the 'pragmatic and functional' approach, as outlined in Pushpanathan, should be applied when looking at issues of discretion. In addition, courts are able to apply a standard of reasonableness to discretionary decision making.
Baker has significant impact on taking into account relevant factors, irrelevant factors, and acting for an improper purpose.
First Step
Ask: Are there discretionary reasons why the case should not be allowed to proceed to judicial review? Is there an alternate remedy? Look at the legislation to see whether it is Federal or Provincial. Overall, courts will deny an application for judicial review when alternative procedures are available. However, under s. 2(5) of the Judicial Review Procedure Act a court can still grant relief.Second Step
Ask: What standard of review should the courts apply? This can be answered by looking at past case law. Starting with CUPE v. New Brunswick Liquor Corp. which introduced the 'Pragmatic and Functional approach' which consisted of three standards: correctness, reasonableness and patent unreasonableness . Subsequent cases reaffirmed this such as Bibault and Southam. The 'Modern Standard' of review was then approached in Pushpanathan v. Canada (Minister of Citizenship and Immigration)
Pushpanathan v. Canada (Minister of Citizenship and Immigration)
Pushpanathan v. Canada , [1998] 1 S.C.R. 982 is a leading decision of the Supreme Court of Canada on the standard of review in Canadian administrative law...
which was affirmed in Baker. Recently there has been a new approach in Dunsmuir v. New Brunswick
Dunsmuir v. New Brunswick
Dunsmuir v. New Brunswick, 1 S.C.R. 190; 2008 SCC 9, is the leading Supreme Court of Canada decision in Canadian administrative law on the topic of substantive review and standards of review...
where the Supreme Court eliminated 'patent unreasonableness' consequently leaving only correctness and reasonableness. The standard of review analysis must be analysed before judicial review.
To determine whether deference is owed to a decision, one must then look at the four factors mentioned above, namely: 1) Is there a privative clause or a right of appeal? 2) What is the level of expertise? 3) What is the purpose of the Act as a whole and the provision in particular? 4) The nature of the problem (question of law or fact)? Once a court has looked at these four factors, then they can apply one of the two standards of review - Correctness (no deference) or Unreasonableness.
Third Step
Ask: Did the administrative body abuse or misuse their discretion? This can be answered by examining the factors determining the scope of the administrative bodies discretion: Expertise; nature of the decision; language of the provision and the legislation; whether the decision is polycentric; intention revealed by the statutory language. When there is more discretion left to the decision maker, there more reluctance for the courts to interfere.
Adding to this, is to ask: What type of abuse? This can be answered by looking at the Grounds for Review of abuse of discretion. As well as the question of is there delegated legislation and whether it is an unreviewable discretionary power (e.g. privileges - not reviewable; prerogative powers - reviewable)
Fourth Step
Concerns the duty of fairness. (As mentioned above) There are two components to the duty of fairness: participatory rights and protection against bias.
Participatory rights - Should a duty of fairness be imposed? While in Cooper the courts recognized the duty of procedural fairness is not limited to the judicial process, they retreated from this proposition until it was resurrected in Nicholson and Knight. The fact that a decision is administrative and affects 'the rights, privileges or interests of an individual' is sufficient to trigger the application of the duty of fairness (Cardinal). As well, the fact that a decision maker does not act judicially does not mean that there isn't a duty to act fairly (Martineau). Subsequently, does it pass the threshold of procedural fairness? There are three factors for the existence of a general duty (Knight, as cited in Cardinal) 1) nature of the decision to be made; 2)relationship between that body and the individual; 3)effect of that decision on the individual's rights. There are some exceptions, one being in the case of emergencies. (Also, here one would see if the Statutory Powers Procedure Act would apply if in Ontario which you could apply a four part test: 1)Is there a statutory power of decision being exercised?; 2)Whether the empowering legislation expressly includes or excludes the SPPA (or relevant legislation); 3)Whether the tribunal is excluded under s. 3(2); 4) If the entity is not expressly excluded, whether an oral hearing would be required otherwise by law? (The SPPA will only apply if an oral hearing is required by law)Was notice given? Is discovery an issue? Is delay an issue? What is the type of hearing they are seeking? Such as an oral hearing (see Khan)where the right to an oral hearing is the highest when credibility is in issue. As well participatory rights are not going to ensure an oral hearing in every issue (Baker). Is the right to counsel in question? Is there a requirement for reasons to be provided?
Protection against bias - This is the second fundamental principle of procedural fairness - the affected parties have the right to a bias free decision. There are two types of bias: 1) Direct or pecuniary and 2) Reasonable apprehension of bias. The test for this is: What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude? (National Energy Board). Factors can include: Kinship, friendship, partisanship. Whether or not there is an apprehension of bias may depend on the degree of deference afforded a particular administrative actor.
Chart
Two grounds to review an administrative tribunal decision:1) Procedural
Procedural law
Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before...
(Martineau)
Natural Justice
Natural Justice
Natural Justice is a charity that does research on the causes of criminal behavior, and especially on the related effects of nutrition. Natural Justice carried out an experiment in the Aylesbury Prison for young offenders. In this study, published in 2002, inmates were randomly assigned to receive...
-applies to judicial/quasi judicial context
-right to notice/be informed
-impartiality and bias
Bias: personal, institutional,
institutional decision
Fairness
-applies non-judicial context
-Nicholson
-elements: right to know case, right to make Choice made by tribunal submissions, reasons of decision maker
-Factors affecting duty of fairness (Baker):
1)Nature of decision
2)Nature of Statutory scheme
3)Importance of decision
4) Legitimate expectations
5) choice made by tribunal
6) Charter S. 7
-Knight
2)Substantive (Error of law/fact/mixed)
-Ask if an error of law or of fact or mixed
- what is the standard of review? (Dunsmuir) (Knight)
- -Either: Correctness- less deference
Reasonableness – more deference
-Factors affecting choice of standard: (Dunsmuir, Baker)
1) Privitive clause (Could lean towards reasonableness)
2) Expertise
3) Interpreting Statute
4) Purpose of Statute
5) Nature of error
a. Law – less deference
b. Fact – more deference
-Also: Discretionary decisions which typically attract more deference
Procedural Fairness
1) Was the person owed procedural fairness? Identify the trigger for procedural fairness originating in Kinght
2) examine the content of procedural fairness with reference to the variables in Baker
3) natural justice and two important elements set out in Nicholson
4) go through rules of procedural fairness and see if apply
5) does the SPPA apply? Federal? provincial?
6) was there bias?
7) effect of breach of procedural fairness
8) what remedies are owed
See also
- National Corn Growers Assn. v. Canada (Import Tribunal)National Corn Growers Assn. v. Canada (Import Tribunal)National Corn Growers Assn. v. Canada , [1990] 2 S.C.R. 1324 is a leading decision of the Supreme Court of Canada on judicial review and statutory interpretation....
(1990).