Baker v.

Canada (SCC, 1999)

The appellant, a woman with Canadian-born dependent children, was ordered
deported. She then applied for an exemption, based on humanitarian and compassionate
considerations under s. 114(2) of the Immigration Act, from the requirement that an application
for permanent residence be made from outside Canada. This application was supported by letters
indicating concern about the availability of medical treatment in her country of origin and the
effect of her possible departure on her Canadian-born children. A senior immigration officer
replied by letter stating that there were insufficient humanitarian and compassionate reasons to
warrant processing the application in Canada. This letter contained no reasons for the decision.
Counsel for the appellant, however, requested and was provided with the notes made by the
investigating immigration officer and used by the senior officer in making his decision. The
Federal Court -- Trial Division, dismissed an application for judicial review but certified the
following question pursuant to s. 83(1) of the Act: Given that the Immigration Act does not
expressly incorporate the language of Canadas international obligations with respect to the
International Convention on the Rights of the Child, must federal immigration authorities treat
the best interests of the Canadian child as a primary consideration in assessing an applicant under
s. 114(2) of the Immigration Act? The Court of Appeal limited its consideration to the question
and found that the best interests of the children did not need to be given primacy in assessing
such an application. The order that the appellant be removed from Canada, which was made
after the immigration officers decision, was stayed pending the result of this appeal.
Held: The appeal should be allowed.
Per LHeureux-Dub, Gonthier, McLachlin, Bastarache and Binnie JJ.:
Section 83(1) of the Immigration Act does not require the Court of Appeal to address only the
certified question. Once a question has been certified, the Court of Appeal may consider all
aspects of the appeal lying within its jurisdiction.
The duty of procedural fairness is flexible and variable and depends on an
appreciation of the context of the particular statute and the rights affected. The purpose of the
participatory rights contained within it is to ensure that administrative decisions are made using a
fair and open procedure, appropriate to the decision being made and its statutory, institutional
and social context, with an opportunity for those affected to put forward their views and evidence
fully and have them considered by the decision-maker. Several factors are relevant to
determining the content of the duty of fairness: (1) the nature of the decision being made and
process followed in making it; (2) the nature of the statutory scheme and the terms of the statute
pursuant to which the body operates; (3) the importance of the decision to the individual or
individuals affected; (4) the legitimate expectations of the person challenging the decision; (5)
the choices of procedure made by the agency itself. This list is not exhaustive.
A duty of procedural fairness applies to humanitarian and compassionate decisions.
In this case, there was no legitimate expectation affecting the content of the duty of procedural
fairness. Taking into account the other factors, although some suggest stricter requirements
under the duty of fairness, others suggest more relaxed requirements further from the judicial
model. The duty of fairness owed in these circumstances is more than minimal, and the claimant

and others whose important interests are affected by the decision in a fundamental way must
have a meaningful opportunity to present the various types of evidence relevant to their case and
have it fully and fairly considered. Nevertheless, taking all the factors into account, the lack of
an oral hearing or notice of such a hearing did not constitute a violation of the requirement of
procedural fairness. The opportunity to produce full and complete written documentation was
sufficient.
It is now appropriate to recognize that, in certain circumstances, including when the
decision has important significance for the individual, or when there is a statutory right of
appeal, the duty of procedural fairness will require a written explanation for a decision. Reasons
are required here given the profound importance of this decision to those affected. This
requirement was fulfilled by the provision of the junior immigration officers notes, which are to
be taken to be the reasons for decision. Accepting such documentation as sufficient reasons
upholds the principle that individuals are entitled to fair procedures and open decision-making,
but recognizes that, in the administrative context, this transparency may take place in various
ways.
Procedural fairness also requires that decisions be made free from a reasonable
apprehension of bias, by an impartial decision-maker. This duty applies to all immigration
officers who play a role in the making of decisions. Because they necessarily relate to people of
diverse backgrounds, from different cultures, races, and continents, immigration decisions
demand sensitivity and understanding by those making them. They require a recognition of
diversity, an understanding of others, and an openness to difference. Statements in the
immigration officers notes gave the impression that he may have been drawing conclusions
based not on the evidence before him, but on the fact that the appellant was a single mother with
several children and had been diagnosed with a psychiatric illness. Here, a reasonable and wellinformed member of the community would conclude that the reviewing officer had not
approached this case with the impartiality appropriate to a decision made by an immigration
officer. The notes therefore give rise to a reasonable apprehension of bias.
The concept of discretion refers to decisions where the law does not dictate a specific
outcome, or where the decision-maker is given a choice of options within a statutorily imposed
set of boundaries. Administrative law has traditionally approached the review of decisions
classified as discretionary separately from those seen as involving the interpretation of rules of
law. Review of the substantive aspects of discretionary decisions is best approached within the
pragmatic and functional framework defined by this Courts decisions, especially given the
difficulty in making rigid classifications between discretionary and non-discretionary decisions.
Though discretionary decisions will generally be given considerable respect, that discretion must
be exercised in accordance with the boundaries imposed in the statute, the principles of the rule
of law, the principles of administrative law, the fundamental values of Canadian society, and the
principles of the Charter.
In applying the applicable factors to determining the standard of review, considerable
deference should be accorded to immigration officers exercising the powers conferred by the
legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an
exception, and the considerable discretion evidenced by the statutory language. Yet the absence

of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial
Division, and the individual rather than polycentric nature of the decision also suggest that the
standard should not be as deferential as patent unreasonableness. The appropriate standard of
review is, therefore, reasonableness simpliciter.
The wording of the legislation shows Parliaments intention that the decision be
made in a humanitarian and compassionate manner. A reasonable exercise of the power
conferred by the section requires close attention to the interests and needs of children since
childrens rights, and attention to their interests, are central humanitarian and compassionate
values in Canadian society. Indications of these values may be found in the purposes of the Act,
in international instruments, and in the Ministers guidelines for making humanitarian and
compassionate decisions. Because the reasons for this decision did not indicate that it was made
in a manner which was alive, attentive, or sensitive to the interests of the appellants children,
and did not consider them as an important factor in making the decision, it was an unreasonable
exercise of the power conferred by the legislation. In addition, the reasons for decision failed to
give sufficient weight or consideration to the hardship that a return to the appellants country of
origin might cause her.
Per Cory and Iacobucci JJ.: The reasons and disposition of LHeureux-Dub J.
were agreed with apart from the effect of international law on the exercise of ministerial
discretion under s. 114(2) of the Immigration Act. The certified question must be answered in
the negative. The principle that an international convention ratified by the executive is of no
force or effect within the Canadian legal system until incorporated into domestic law does not
survive intact the adoption of a principle of law which permits reference to an unincorporated
convention during the process of statutory interpretation.
Ref. Re Residential Tenancies Association (SCC, 1979)
The Ontario Legislature enacted The Residential Tenancies Act, 1979, to come into effect on
proclamation. The Act contained a legislative code to govern landlords and tenants and
established the Residential Tenancy Commission to oversee and enforce the newly enunciated
rights and obligations. The Executive Council, responding to questions concerning the authority
of the Legislature to make orders evicting tenants from residential premises and to require
landlords and tenants to comply with obligations imposed under the Act, referred two questions
dealing with those issues to the Ontario Court of Appeal. That Court concluded that it was not
within the legislative authority of Ontario to make eviction orders and compliance orders as
provided in The Residential Tenancies Act, 1979. This Court was only concerned with the
constitutional validity of two powers, the subject matter of the reference, and not with the
soundness of the overall legislative scheme.
Held: The appeal should be dismissed.
Royal Commission Reports and Reports of Parliamentary Committees made prior to the passing
of a statute were admissible to show the factual context and purpose of the legislation. The
practice adopted in the Anti-Inflation Reference of giving timely directions establishing the

extraneous materials to be admitted should be followed. Material relevant to the issues before the
Court and not inherently unreliable or offending against public policy should be admissible,
subject to the provisio that such extrinsic materials are not available for the purpose of aiding in
statutory construction.
Section 96 of the British North America Act limited provincial competence to make
appointments to a tribunal exercising s. 96 judicial powers and implicitly limited provincial
competence to endow a provincial tribunal with such powers. That section, however, could no
longer be construed as a bar to a province seeking to vest an administrative tribunal with
ancillary judicial powers formerly exercised by s. 96 courts, subject to the qualification that the
judicial function not be isolated from the rest of the administrative structure of the legislation.
The test was to be formulated in three steps. The first involved consideration, in light of the
historical conditions existing in 1867, of the particular power or jurisdiction conferred upon the
tribunal. The matter ended there if the power was not broadly conformable to the jurisdiction
formerly exercised by s. 96 courts. If, however, the power were identical or analogous to a power
exercised by a s. 96 court at Confederation it became necessary to proceed to step two. The
second step involved consideration of the function within its institutional setting to determine
whether the function was still judicial. The subject matter rather than the apparatus of
adjudication was determinative and only if the power could still be characterized as judicial was
it necessary to proceed to the third stepa review of the tribunals function as a whole in order
to appraise the impugned function in its entire institutional context. A provincial scheme was
only invalid where the adjudicative function was a sole or central function of the tribunal so that
it could be said to be operating like a s. 96 court.
Applying step one the Court found that the powers conferred on the Commission were in broad
conformity with those historically exercised by the s. 96 courts before and after Confederation.
The argument that the power to order eviction had been conferred before Confederation on
County Court judges as persona designata, and that that power and by analogy the power to
make orders of compliance were therefore outside the superior or county court structure, went
too far. The jurisdiction over overholding tenants in pre-Confederation legislation was merely a
modification of the traditional jurisdiction on ejectment exercised by the superior courts. The
County Court judges acting under the over-holding tenants provisions were acting qua judge
rather than as persona designata. The submission that the Commissions jurisdiction was
analogous to that exercisable by courts of summary jurisdiction rather than by s. 96 courts was
misconceived. Provinces could not avoid the limitations of s. 96 by taking a function of a s. 96
court, simplifying procedural matters, and then transferring the jurisdiction to a non s. 96
tribunal.
Proceeding to step two the Court found that the impugned power to order eviction or compliance,
viewed in its institutional setting, remained essentially a judicial power exercised in all cases
in the context of a lis between parties. The Commission in deciding contractual and property
rights as between individual landlords and tenants also determined rights other than those
relating to land and property. Each case involved analysis of law, an application of law to the
facts, and a judicial decision and subsequent order.

The third step examined the inter-relationship between the impugned judicial powers and other
powers under the Act. The central function of the Commission was the resolution of disputes, in
the final form by a judicial form of hearing between landlords and tenants. The Commissions
other functions were either ancillary to this central function, or were separate and distinct from it
and bore no relation to it. There was no broad legislative scheme to subsume the Commissions
judicial functions. The whole of s. 96 courts jurisdiction in a certain area, however limited, was
transferred to provincially appointed officials.
Cook v. Alberta (Minister of the Environment) 2001 ABCA
Administrative law --- Delegation of decision-making power General
Applicants sought to lease public land in order to operate campground Land was subject to
20-year forest management agreement between province and company which permitted Minister
to withdraw lands from agreement at any time at his discretion Applicants were told that lease
application was cancelled because they had failed to negotiate land withdrawal with company
and there had been negative public response Applicants appealed decision to cancel lease
application Minister advised applicants that appeal committee would make final land use
decision regarding status of lease application Appeal Committee's report recommended that
Minister withdraw land from agreement resulting in lease application being reinstated
Minister informed applicants that he disagreed with recommendation to withdraw land and lease
application would not be reinstated Applicants' application for judicial review was dismissed
Chambers judge held that Minister had no statutory power to delegate his discretion
Applicants appealed Issue arose as to delegation of Minister's discretion Minister could not
delegate power concerning land withdrawals to Appeal Committee Committee did not think it
had been delegated power to make decision and its report made plain that it was only providing
recommendation Committee did not fall into categories under s. 21 of Interpretation Act
regarding permissible delegation of ministerial powers As Minister's power to withdraw land
from agreement was inherently discretionary, it was unlikely that legislature meant appeal
committee to exercise Minister's powers in that regard Interpretation Act, R.S.A. 1980, c. I-7,
s. 21.
Administrative law --- Requirements of natural justice Right to hearing Procedural rights
at hearing Reasons for decision
Applicants sought to lease public land in order to operate campground Land was subject to
20-year forest management agreement between province and company which permitted Minister
to withdraw lands from agreement at any time at his discretion Applicants were told that lease
application was cancelled because they had failed to negotiate land withdrawal with company
and there had been negative public response Applicants appealed decision to cancel lease
application Minister sent letter advising applicants that appeal committee would make final
land use decision regarding status of lease application Appeal Committee's report
recommended that Minister withdraw land from agreement resulting in lease application being
reinstated Minister informed applicants that he disagreed with recommendation to withdraw
land and lease application would not be reinstated Applicants' application for judicial review
was dismissed Applicants appealed Appeal allowed in part Multi-faceted issues were
involved in Minister's decision Applicants invested time and money in lengthy and complex
process leading to Minister's decision Economic impact of Minister's decision was not

underestimated Applicants' expectations did not entitle them to substantive remedies but were
relevant to procedural fairness Minister's statements and letter caused applicants to believe
that Minister would follow appeal committee's decision Applicants were entitled to
explanation for Minister's decision Matter remitted to Minister with direction that he provide
reasons for decision not to withdraw land from agreement or reinstated lease application.
Nicholson v. Haldimand-Norfolk Pol. Commrs (SCC, 1979)
Appellant was engaged as a constable, third class, by the Town of Caledonia under an oral
contract providing for a twelve month probationary period. Eleven months later he was promoted
to constable second class. The municipality was (after the expiry of the twelve month period)
incorporated into the Regional Municipality of Haldimand-Norfolk. The respondent Board
thereafter, but within eighteen months of his initial appointment purported to dispense with his
services. Section 27 of Regulation 680 made under The Police Act provides inter alia that no
police officer is subject to any penalty (under that Part of the Regulations) except after a hearing
and final disposition of a charge on appeal or after the time for appeal has expired subject to
certain exceptions, one of which is the authority of a board or council to dispense with the
services of any constable within eighteen months of his appointment to the force. The
Divisional Court granted an application to quash the decision of the Board but the Court of
Appeal reversed on the basis that s. 21(b) of the Regulations had the effect of preserving the
common law right of the Board to dispense with the services of any probationary constable at
their pleasure (and consequently without a hearing) and took the view that the terms of s. 27 (b)
did not admit of contractual variation making the fact that appellant had been originally hired for
a twelve month probationary period irrelevant.
Held (Martland, Pigeon, Beetz and Pratte JJ. dissenting): The appeal should be allowed.
Per Laskin C.J. and Ritchie, Spence, Dickson and Estey JJ.: The Police Act and regulations
thereunder form a code for police constables with an array of powers some of which are
discretionary. The respondent Board as a body created by statute, has only such powers as are
given to it by the statute or regulations. In effect a constable is the holder of a public office
exercising, so far as his police duties are concerned, an original authority confirmed by s. 55 of
The Police Act and is a member of a civilian force. His assimilation to a soldier as in the
Perpetual Trustee Co. case, [1955] A.C. 457, is for limited purposes only and cannot apply for
other purposes such as liability or otherwise to peremptory discharge. In Ridge v. Baldwin,
[1964] A.C. 40, Lord Reid set out a three-fold classification of dismissal situations: dismissal of
a servant by his master, dismissal from an office held during pleasure, and dismissal from an
office where there must be something against a man to warrant his dismissal. The present case is
not one where the constable held office during pleasure, and accordingly fits more closely into
Lord Reids third class. The appellant should have been told why his services were no longer
required and given an opportunity to respond. Thereafter it would have been for the Board to
reach its decision and that decision, always premising good faith, would not have been
reviewable elsewhere. While the appellant could not claim the procedural protections of a
constable with more than eighteen months service, he should have been treated fairly not
arbitrarily.

Per Martland, Pigeon, Beetz and Pratte JJ. dissenting;. The relevant provision is s. 27(b) which
clearly recognizes the existence of an authority in the Board to terminate the employment of a
police constable at any time within a period of eighteen months commencing from the date of his
appointment. Both the Divisional Court and the Court of Appeal correctly regarded the eighteen
month period as a probationary one. It is not without significance that whereas paras. (a), (c) and
(e) refer to member of the police force, para. (b) does not. The respondent had therefore the
right to dispense with the appellants services without an investigation of his conduct. The
purpose of the probationary period was to enable the Board to decide whether it wished to
continue the appellants services. The decision of the Board was purely administrative and it was
under no duty to explain why his services were no longer required or to give him an opportunity
to be heard. It could have taken that course as a matter of courtesy but its failure to do so was not
a breach of any legal duty to him.
Canada v. Inuit Tapirisat of Canada (SCC, 1980)
After the approval by the CRTC of a new rate structure for Bell Canada, the plaintiffsrespondents appealed the CRTC decision to the Governor General in Council pursuant to s. 64(1)
of the National Transportation Act. Their petitions having been denied, the respondents attacked
the decisions of the Governor General in Council alleging that they had not been given a hearing
in accordance with the principles of natural justice. This appeal arises from an application made
in the Trial Division of the Federal Court for an order striking out the plaintiffs' statement of
claim on the ground that the statement disclosed "no reasonable cause of action". The application
was granted but the Federal Court of Appeal set aside the order of the Trial Division judge.
Hence the appeal to this Court.
Held: The appeal should be allowed.
The substance of the question before this Court in this appeal is whether there is a duty to
observe natural justice in, or at least a duty of fairness incumbent on, the Governor in Council in
dealing with parties such as the respondents upon their submission of a petition under s. 64(1) of
the National Transportation Act.
Such petitions are to be contrasted with the mechanism for appeal to the Federal Court of Appeal
on questions of law or jurisdiction provided in subs. (2) and following of s. 64. The courts have
held that the rules of natural justice and the duty to act fairly depend on the circumstances of the
case, the nature of the inquiry or investigation, the subject matter that is being dealt with, the
consequences on the persons affected and so forth. The mere fact that a decision is made
pursuant to a statutory power vested in the Governor in Council does not mean that it is beyond
review if the latter fails to observe a condition precedent to the exercise of that power, whether
such power is classified as administrative or quasi-judicial. However in this case, there is no
failure to observe a condition precedent but rather the attack is directed at procedures adopted by
the Governor in Council, once validly seized of the respondents' petitions. The very nature of the
Governor in Council must be taken into account in assessing the technique of review which he

adopted. The executive branch cannot be deprived of the right to resort to its staff, departmental
personnel and ministerial members concerned with the various policy issues raised by a petition.
Under s. 64(1), the Governor in Council is not limited to varying orders made inter partes but he
may act "of his motion"; he may act "at any time"; he may vary or rescind any order, decision,
rule or regulation "in his discretion". Parliament has in s. 64(1) not burdened the Governor in
Council with any standards or guidelines in the exercise of its rate review function. Nor were
procedural standards imposed or even implied. The discretion of the Governor in Council is
complete provided he observes the jurisdictional boundaries of s. 64(1). Furthermore there is no
need for the Governor in Council to give reasons for his decision, to hold any kind of hearing, or
even to acknowledge the receipt of a petition. Where the executive branch has been assigned a
function performable in the past by the Legislature itself and where the res or subject matter is
not an individual concern, considerations different from Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, arise. In such a circumstance
the Court must fall back upon the basic jurisdictional supervisory role and in so doing construe
the statute to determine whether the Governor in Council has performed its functions within the
boundary of the parliamentary grant and in accordance with the terms of the parliamentary
mandate.
Further, there is nothing in s. 64(1) to justify a variable yardstick for the application to that
section of the principle of fairness according to the source of the information placed before the
Governor in Council. Once the proper construction of the section is determined, it applies
consistently throughout the proceedings before the Governor in Council.
Reference re Canada Assistance Plan (SCC, 1990)
In 1990, the federal government, in order to reduce the federal budget deficit, decided to cut
expenditures and limit the growth of payments made to financially stronger provinces under the
Canada Assistance Plan (the "Plan"). This change was embodied in Bill C-69, now the
Government Expenditures Restraint Act. Under the Plan, the federal government concluded
agreements with the provinces to share the cost of their expenditures on social assistance and
welfare. Section 5 of the Plan authorizes contributions amounting to half of the provinces'
eligible expenditures. These agreements continue to be in force so long as the relevant provincial
law remains in operation (s. 8(1)). They may be amended or terminated by mutual consent, or
terminated on one year's notice from either party (s. 8(2)). The Plan also provides for regulations,
but regulations affecting the substance of agreements are ineffective unless passed with the
consent of any province affected (s. 9(2)).
The Lieutenant Governor in Council of British Columbia, in accordance with s. 1 of
the Constitutional Question Act of that province, referred to the British Columbia Court of
Appeal two constitutional questions to determine: (1) whether the Government of Canada has
any authority to limit its obligation under the Plan and its Agreement with British Columbia; and
(2) whether the terms of the Agreement, the subsequent conduct of the Government of Canada
pursuant to the Agreement and the provisions of the Plan give rise to a legitimate expectation that
the Government of Canada would introduce no bill into Parliament to limit its obligation under

the Agreement or the Plan without the consent of British Columbia. The Court of Appeal
answered the first question in the negative and the second question in the affirmative.
Held: The appeal should be allowed. The first constitutional question is answered in
the affirmative. The second constitutional question is answered in the negative.
Justiciability
The reference questions raise matters that are justiciable and should be answered.
Both questions have a sufficient legal component to warrant the intervention of the judiciary
branch. The first question requires the interpretation of a statute of Canada and an agreement.
The second raises the question of the applicability of the legal doctrine of legitimate expectations
to the process involved in the enactment of a money bill. A decision on these questions will have
the practical effect of settling the legal issues in contention and will assist in resolving the
controversy. There is no other forum in which these legal questions could be determined in an
authoritative manner.
Question 1
In presenting Bill C-69 to Parliament, the Government of Canada acted in
accordance with the Agreement. While the language of the Plan is, in general, duplicated in the
Agreement, the contribution formula, which authorizes payments to the provinces, appears only
in s. 5 of the Plan. Being part of the Plan, the formula is subject to amendment by virtue of the
principle of parliamentary sovereignty reflected in s. 42(1) of the federal Interpretation Act ,
which states that "Every Act shall be construed as to reserve to Parliament the power of repealing
or amending it...". Under s. 54 of the Constitution Act, 1867 , a money bill, including an
amendment to a money bill like the Plan, can only be introduced on the initiative of the
government. In these circumstances, the natural meaning to be given to the Agreement is that
Canada's obligation is to pay the contributions which are authorized from time to time and not
the contributions that were authorized when the Agreement was signed. The insertion of the
formula for payment in the Plan only was a very strong indication that the parties did not intend
that the formula should remain forever frozen. To assert that the federal government could
prevent Parliament from exercising its powers to legislate amendments to the Plan would be to
negate the sovereignty of Parliament. As well, Parliament did not intend to fetter its sovereign
legislative power in restricting, in s. 9(2) of the Plan, the federal government's regulatory powers.
Finally, the Agreement could be amended otherwise than in accordance with s. 8 of the Plan. The
Agreement, which is subject to the amending formula in s. 8 , obliges Canada to pay the amounts
which Parliament has authorized Canada to pay pursuant to s. 5 of the Plan. Hence, the payment
obligations under the Agreement are subject to change when s. 5 is changed. That provision
contains its own process of amendment by virtue of the principle of parliamentary sovereignty.
Question 2
The federal government did not act illegally in invoking the power of Parliament to
amend the Plan without obtaining the consent of British Columbia. The doctrine of legitimate
expectations does not create substantive rights -- in this case, a substantive right to veto proposed

federal legislation. The doctrine is part of the rules of procedural fairness which can govern
administrative bodies. Where it is applicable, it can only create a right to make representations or
to be consulted. Moreover, the doctrine does not apply to the legislative process. The
government, which is an integral part of this process, is thus not constrained by the doctrine from
introducing a bill to Parliament. A restraint on the executive in the introduction of legislation
would place a fetter on the sovereignty of Parliament itself. This is particularly true when the
restraint relates to the introduction of a money bill. It is also fundamental to our system of
government that a government is not bound by the undertakings of its predecessor. The doctrine
would derogate from this essential feature of democracy.
The Plan does not purport to control the "manner and form" of subsequent
legislation. Where a statute is of a constitutional nature and governs legislation generally, rather
than dealing with a specific statute, it can impose requirements as to manner and form. But
where, as in this case, a statute has no constitutional nature, it will be very unlikely to evidence
an intention of the legislative body to bind itself in the future. Sections 8(2) and 9(2) of the Plan,
read together, do not reveal, by necessary implication, a requirement that subsequent legislation
cannot alter the Plan unless the consent of the affected province or provinces is obtained. They
address only amendments to the Agreement and to the regulations under the Plan, and say
nothing about amendments to the Plan. Moreover, any "manner and form" requirement in an
ordinary statute must overcome the clear words of s. 42(1) of the Interpretation Act . This
provision requires that federal statutes ordinarily be interpreted to accord with the doctrine of
parliamentary sovereignty. This doctrine prevents a legislative body from binding itself as to the
substance of its future legislation.
Section 2 of the Government Expenditures Restraint Act is intra vires Parliament.
First, Parliament was not disabled from unilaterally changing the law so as to change the
Agreement once it had been authorized by Parliament and executed by the parties. The
Agreement was between British Columbia and the federal government. It did not bind
Parliament. The applicable constitutional principle is the sovereignty of Parliament. Second, the
new legislation does not amount to regulation of an area outside federal jurisdiction. Bill C-69
was not an indirect, colourable attempt to regulate in provincial areas of jurisdiction. It is simply
an austerity measure. Further, the simple withholding of federal money, which had previously
been granted to fund a matter within provincial jurisdiction, does not amount to the regulation of
that matter. The new legislation simply limits the growth of federal contributions. While the
Government Expenditures Restraint Act impacts upon a constitutional interest outside the
jurisdiction of Parliament, such impact is not enough to find that a statute encroaches upon the
jurisdiction of the other level of government. The Court should not, under the "overriding
principle of federalism", supervise the federal government's exercise of its spending power in
order to protect the autonomy of the provinces. Supervision of the spending power is not a
separate head of judicial review. If a statute is neither ultra vires nor contrary to the Canadian
Charter of Rights and Freedoms , the courts have no jurisdiction to supervise the exercise of
legislative power.
Cardinal v. Kent Institution (SCC, 1985)

Appellants were prisoners who were allegedly involved in a hostage-taking incident in Matsqui
Institution. Criminal charges of forcible seizure and attempted escape were laid against them.
They were transferred to Kent Institution where they were placed, on the Director's oral
instructions, in administrative dissociation or segregation, pursuant to s. 40 of the Penitentiary
Service Regulations, on the ground that it was necessary for the maintenance of good order and
discipline in the institution. The Director did not make an independent inquiry into the alleged
involvement of the appellants in the hostage-taking incident but relied on what he had heard
from the warden of Matsqui Institution and personnel at regional headquarters. The Segregation
Review Board, which reviewed the appellants' segregation monthly in accordance with s. 40 of
the Regulations, recommended that they be released from administrative segregation into the
general prison population. The Director refused to follow the Board's recommendation on the
ground that the appellants' release from segregation before the disposition of the criminal charges
pending against them would "probably" or "possibly" introduce an unsettling element into the
prison population. The Director did not inform the appellants of his reasons for refusing to
follow the Board's recommendation and did not give them an opportunity to be heard as to
whether he should act in accordance with the recommendation.
Appellants challenged their continued confinement in administrative dissociation or
segregation by applications for habeas corpus with certiorari in aid. McEachern C.J.S.C. in the
Supreme Court of British Columbia held that the Court had jurisdiction to issue certiorari in aid
of habeas corpus, despite the exclusive jurisdiction by way of certiorari of the Federal Court of
Canada under s. 18 of the Federal Court Act , and that habeas corpus would lie to determine the
validity of confinement in administrative segregation. On the merits of the applications, he held
that the continued segregation of the appellants, despite the recommendation of the Segregation
Review Board, had become unlawful because of a breach of the duty of procedural fairness, and
he ordered the release of the appellants into the general population of the penitentiary. The
British Columbia Court of Appeal held that the Supreme Court had jurisdiction to issue
certiorari in aid of habeas corpus, that the Court could on habeas corpus alone consider affidavit
evidence to determine whether there had been an absence or excess of jurisdiction, and that
habeas corpus would lie to determine the validity of confinement in administrative segregation,
but a majority of the Court of Appeal held that the continued segregation of the appellants had
not been rendered unlawful by a breach of the duty of procedural fairness. The appeal was
accordingly allowed.
Held: The appeal should be allowed.
For the reasons given in R. v. Miller, [1985] 2 S.C.R. 613, the Court of Appeal
correctly concluded (a) that the British Columbia Supreme Court had jurisdiction to issue
certiorari in aid of habeas corpus; (b) that the Court could on an application for habeas corpus
alone consider affidavit evidence to determine whether there had been an absence or excess of
jurisdiction; and (c) that habeas corpus would lie to determine the validity of the confinement of
an inmate in administrative dissociation or segregation, and if such confinement be found to be
unlawful to order his release into the general population of the institution.
The Director was under a duty of procedural fairness in exercising the authority
conferred by s. 40 of the Regulations with respect to administrative dissociation or segregation.

At common law, a duty of procedural fairness lies on every public authority making an
administrative decision which is not of a legislative nature and which affects the rights,
privileges or interests of an individual. The duty of procedural fairness has been held to apply in
principle to disciplinary proceedings within a penitentiary, and although administrative
segregation is distinguished from punitive or disciplinary segregation in the Regulations, the
effect on the prisoner is the same and gives rise to the duty to act fairly. The extent to which
procedural requirements are imposed in the prison setting must, however, be approached with
caution.
The original imposition of administrative dissociation or segregation on the
appellants was a lawful exercise of the Director's discretionary authority and was not carried out
unfairly. In view of the urgent or emergency nature of the decision there could be no requirement
of prior notice and hearing. In the case of the Director's decision to continue the appellants'
segregation, despite the recommendation of the Segregation Review Board that they be released
into the general population of the penitentiary, procedural fairness required that the Director
inform the appellants of the reasons for his intended decision and give them an opportunity
before him, however informal, to state their case for release. These minimal requirements of
procedural fairness were fully compatible with the concern that the process of prison
administration, because of its special nature and exigencies, should not be unduly burdened or
obstructed by the imposition of unreasonable or inappropriate procedural requirements.
As to the possible suggestion in the decision of the majority of the Court of Appeal
that the breach of the duty of procedural fairness, if any, was not of sufficient consequence to
render the continued segregation of the appellants unlawful, the denial of a right to a fair hearing
must always render a decision invalid, whether or not it may appear to a reviewing court that the
hearing would likely have resulted in a different decision. The right to a fair hearing must be
regarded as an independent, unqualified right which finds its essential justification in the sense of
procedural justice which any person affected by an administrative decision is entitled to have. It
is not for a court to deny that right and sense of justice on the basis of speculation as to what the
result might have been had there been a hearing.
By his failure to afford the appellants a fair hearing on the question whether he
should act in accordance with the recommendation of the Segregation Review Board the Director
rendered the continued segregation of the appellants unlawful. They, therefore, had a right on
habeas corpus to be released from administrative dissociation or segregation into the general
population of the penitentiary.
Kane v. UBC (SCC, 1980)
Two deans of faculties at the University of British Columbia recommended that the appointment
of the appellant (K), a professor at the University, be terminated for cause, the chief complaint
being that he had made improper use of the university computer facilities for personal purposes.
Following a meeting called by the President of the University, at which K and his counsel were
present, the deans recommended that, instead of terminating K's appointment, he should be
suspended without salary for three months, and be required to make financial restitution to the

University. The deans were influenced by the argument that the irregular procedures followed by
K were the result of a misunderstanding rather than a deliberate attempt to deceive, and that
administrative officers of the University may have been lax in discharging their duties to such a
degree as to mislead K as to the proper procedures to be followed.
The President of the University acted according to the deans' recommendation. He suspended K
for three months, without salary, pursuant to s. 58(1) of the Universities Act, 1974 (B.C.), c. 100,
and directed him to provide a full accounting and restitution of all sums due the University.
K appealed to the Board of Governors of the University, pursuant to s. 58(3). K did not question
the fact that he had used the university computer for his own purposes, but felt that he should not
be suspended for doing so. The President attended the meeting as a member of the Board.
Section 61 of the Universities Act provides that the President is a member of the Board "and shall
attend its regular meetings."
K and his counsel were heard by the Board. K answered questions directed to him by members
of the Board. During the hearing, the President of the University responded to questions directed
to him by Board members, but did not ask questions of K or his counsel.
At the conclusion of the hearing, the chairman requested K and his counsel to leave so that the
Board might deliberate. Following an adjournment for dinner, the Board deliberated, the
University President being present throughout. The President did not participate in the
discussions. Nor did he vote upon the resolution. He did, however, answer questions directed to
him by Board members. The Board approved the three-month suspension of K, without salary,
and the order for a full accounting and restitution of all sums due to the University for the use of
the computer for private and commercial affairs.
K petitioned the Supreme Court of British Columbia for an order that the Board resolution be
quashed, pursuant to the Judicial Review Procedure Act, 1976 (B.C.), c. 25. The petition was
dismissed. A majority of the British Columbia Court of Appeal dismissed an appeal from the trial
judgment. K appealed from the judgment of the Court of Appeal to this Court.
Held (Ritchie J. dissenting): The appeal should be allowed.
Per Martland, Pigeon, Dickson, Beetz, Estey and McIntyre JJ.: The submission which was based
upon the fact that the President testified or gave evidence during the postprandial session in the
absence of K and that this amounted to a breach of the principles of natural justice and a failure
to observe the rule expressed in the maxim audi alteram partem was accepted. Applying the
following principles, the appeal must be allowed.
1. It is the duty of the courts to attribute a large measure of autonomy of decision to a tribunal,
such as a Board of Governors of a University, sitting in appeal, pursuant to legislative mandate.
2. As a constituent of the autonomy it enjoys, the tribunal must observe natural justice. To
abrogate the rules of natural justice, express language or necessary implication must be found in
the statutory instrument.
3. A high standard of justice is required when the right to continue in one's profession or
employment is at ' stake. A disciplinary suspension can have grave and permanent consequences
upon a professional career.

4. The tribunal must listen fairly to both sides giving the parties to the controversy a fair
opportunity for correcting or contradicting any relevant statement prejudicial to their views.
5. Unless expressly or by necessary implication empowered to act ex parte, an appellate
authority must not hold private interviews with witnesses or, a fortiori, hear evidence in the
absence of a party whose conduct is impugned and under scrutiny.
6. The Court will not inquire whether the evidence did work to the prejudice of one of the
parties; it is sufficient if it might have done so.
The Board was under an obligation to postpone further consideration of the matter until such
time as K might be present and hear the additional facts adduced; at the very least the Board
should have made K aware of those facts and afforded him a real and effective opportunity to
correct or meet any adverse statement made. In the event, the Board followed neither course. The
Board heard the further facts, deliberated, and ruled against K. In doing so, it made a
fundamental error. The danger against which the Courts must be on guard is the possibility that
further information could have been put before the Board for its consideration which affected the
disposition of the appeal.
Per Ritchie J., dissenting: K knew from the outset exactly what it was that he was charged with,
and he had an opportunity to present his case and to examine the witnesses against him. It could
not be suggested that the President decided to wait until K was absent before providing the
members of the Board with facts prejudicial to K, what the allegations really were and the
reasons why the penalty was reduced from termination to suspension. If this had been the case
there would indeed have been a grave breach of good faith on the part of the President and other
Board members and a denial to the appellant of the fundamental right to be heard in his own
defence in breach of the elementary principles of natural justice.
The statement contained in a letter from a member of the Board to the counsel for the University
to the effect that the President provided the Board with necessary facts without in any way
discussing the merits of the appeal, was too slender a thread upon which to support an accusation
of such gravity against men of presumed integrity acting under a statutory authority.
Pritchard v. Ontario (SCC, 2004)
The appellant filed a complaint with the Ontario Human Rights Commission against her former
employer. She later sought judicial review of the Commissions decision not to deal with most
of her complaint. When the Commission refused her request for the production of various
documents, including a legal opinion provided to the Commission by in-house counsel, the
appellant brought a motion before a judge of the Divisional Court for the production of all
documents that were before the Commission when it made its decision, including the legal
opinion. The motion was granted. On appeal on the sole issue of the production of the legal
opinion, a three-judge panel of the Divisional Court upheld the motions judges decision. The
Court of Appeal set aside the orders pertaining to the legal opinion, holding that the opinion was
privileged.
Held: The appeal should be dismissed.

Solicitor-client privilege applies to a broad range of communications between lawyer and client
and applies with equal force in the context of advice given to an administrative board by inhouse counsel as it does to advice given in the realm of private law. If an in-house lawyer is
conveying advice that would be characterized as privileged, the fact that that lawyer is inhouse does not remove the privilege and does not change its nature. Owing to the nature of the
work of in-house counsel, often having both legal and non-legal responsibilities, each situation
must be assessed on a case-by-case basis to determine if privilege arose in the circumstances.
Here, the communication between the Commission and its in-house counsel was a legal opinion
and protected by solicitor-client privilege.
Procedural fairness does not require the disclosure of a privileged legal opinion and does not
affect solicitor-client privilege. Both may co-exist without being at the expense of each other. In
this case, the appellant was aware of the case to be met without production of the legal opinion.
Further, legislation purporting to limit or deny solicitor-client privilege must be interpreted
restrictively; this privilege cannot be abrogated by inference. [R]ecord of the proceedings in
s. 10 of the Ontario Judicial Review Procedure Act does not include privileged communications
from in-house counsel. Section 10 does not clearly or unequivocally express an intention to
abrogate solicitor-client privilege and does not stipulate that the record includes legal opinions.
Finally, the common interest exception to solicitor-client privilege does not apply to an
administrative board with respect to the parties before it.
May v. Ferndale Institution (SCC, 2004)
The appellant inmates are prisoners serving life sentences. Based on a computerized
reclassification scale which yielded a medium-security rating, they were each involuntarily
transferred from a minimum- to a medium-security institution. There were no allegations of fault
or misconduct on the part of these inmates. The transfers were the result of a direction from the
Correctional Service of Canada (CSC) to review the security classifications of all inmates
serving life sentences in minimum-security institutions who had not completed their violent
offender programming. CSC used a computer application to assist the classification review
process. This application, the Security Reclassification Scale (SRS), was developed to help
caseworkers determine the most appropriate level of security at key points throughout an
offenders sentence. It provides a security rating based on data entered with respect to various
factors related to the assessment of risk.
The inmates applied to the provincial superior court for habeas corpus with certiorari in aid
directing correction officials to transfer them back to the minimum-security facility. From the
outset, they requested the scoring matrix for the SRS, but were told it was not available. The
chambers judge found that a provincial superior court had jurisdiction to review a federal
inmates involuntary transfer on an application for habeas corpus with certiorari in aid, but that
the applications should be dismissed because the inmates transfers had not been arbitrary and
had not been made in the absence of jurisdiction. The Court of Appeal dismissed the inmates
appeal, holding that the chambers judge ought to have declined to exercise habeas corpus
jurisdiction because no reasonable explanation was given for the inmates failure to pursue

judicial review in Federal Court. Before the hearing in this Court, the inmates filed a motion to
submit the cover page of a scored copy of an assessment and a current version of the scoring
matrix as new evidence.
Held (Major, Bastarache and Charron JJ. dissenting): The appeal should be allowed. The
applications for habeas corpus and the motion to adduce new evidence should be granted. The
transfer decisions are declared null and void for want of jurisdiction.
Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ.: Inmates may choose to
challenge the legality of a decision affecting their residual liberty either in a provincial superior
court by way of habeas corpus or in the Federal Court by way of judicial review. As a matter of
principle, a provincial superior court should exercise its jurisdiction when it is requested to do
so. Habeas corpus jurisdiction should not be declined merely because an alternative remedy
exists and seems more convenient to the court. Provincial superior courts should decline
habeas corpus jurisdiction only where (1) a statute, such as the Criminal Code , confers
jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if
need be, or (2) the legislator has put in place complete, comprehensive and expert procedure for
review of an administrative decision, such as the scheme created by Parliament for immigration
matters. [44-50]
Here, the Court of Appeal erred in barring access to habeas corpus as neither of the two
recognized exceptions are applicable. First, these cases involve administrative decisions in the
prison context, not criminal convictions. Second, Parliament has not enacted a complete,
comprehensive and expert procedure for review of a decision affecting inmates confinements.
The language of the Corrections and Conditional Release Act (CCRA ) and its regulations
make it clear that Parliament did not intend to bar federal inmates access to habeas corpus. The
scheme of review and appeal which militates against the exercise of habeas corpus jurisdiction
in the immigration context is substantially different from the grievance procedure provided in the
CCRA . Moreover, when the habeas corpus jurisdiction of provincial superior courts is assessed
purposively, the relevant factors favour the concurrent jurisdiction approach. This approach
properly recognizes the importance of affording inmates a meaningful and significant access to
justice in order to protect their liberty rights. Timely judicial oversight, in which provincial
superior courts must play a concurrent if not predominant role, is still necessary to safeguard the
human rights and civil liberties of inmates, and to ensure that the rule of law applies within
penitentiary walls. [51-72]
Habeas corpus should not be granted in these cases on the basis of arbitrariness. A transfer
decision initiated by a mere change in policy is not, in and of itself, arbitrary. The new policy
applied here strikes a proper balance between the interests of inmates deprived of their residual
liberty and the states interest in the protection of the public. It also required that inmates be
transferred to higher security institutions only after individual assessment. In each case, there
was a concern that the inmate had failed to complete a violent offender program, thereby
ensuring that the inmates liberty interest was limited only to the extent necessary to protect the
public. [83-86]

However, habeas corpus should be granted because CSCs failure to disclose the scoring matrix
for the computerized security classification rating tool unlawfully deprived the inmates of their
residual liberty. While the Stinchcombe disclosure standard is inapplicable to an administrative
context, in that context procedural fairness generally requires that the decision-maker disclose
the information relied upon. The individual must know the case he has to meet. If the
decision-maker fails to provide sufficient information, his decision is void for lack of
jurisdiction. In order to assure the fairness of decisions concerning inmates, s. 27(1) of the
CCRA requires that CSC give the inmate, at a reasonable period before the decision is to be
taken, all the information to be considered in the taking of the decision or a summary of that
information. Here, CSCs failure to disclose the scoring matrix which was available at the
relevant time, despite several requests by the inmates, was a clear breach of procedural fairness
and of its statutory duty of disclosure. This information was not a duplication of information
already disclosed. Without the scoring matrix which provides information on the numerical
values to be assigned to each factor and to the manner in which a final score is generated by the
computerized tool, the inmates were deprived of information essential to understanding the
computerized system which generated their scores and were prevented from formulating a
meaningful response to the reclassification decisions. The inmates knew what the factors were,
but did not know how values were assigned to them or how those values factored into the
generation of the final score. Since CSC concealed crucial information and violated in doing so
its statutory duty of disclosure, the transfer decisions were made improperly. They are,
therefore, null and void for want of jurisdiction. The inmates motion to adduce the scoring
matrix as new evidence should be granted because the evidence satisfies all the requirements of
the Palmer test. [91-120]
Per Major, Bastarache and Charron JJ. (dissenting): The provincial superior court properly
exercised its habeas corpus jurisdiction, and its dismissal of the habeas corpus applications must
be upheld because the inmates were not unlawfully deprived of their liberty. First, the transfer
decisions were not arbitrary. Each decision was based on an individualized assessment of the
merits of each case. Second, although the inmates should have been provided with the scoring
matrix, which they had specifically requested so that they could check the accuracy of the total
SRS score, not every instance of non-disclosure results in a breach of procedural fairness and
deprives the decision-maker of jurisdiction. In these cases, the statutory requirement to provide a
summary of the information in s. 27(1) of the CCRA was met. Further, procedural fairness
was achieved, because each inmate was provided with sufficient information to know the case he
had to meet. The inmates were advised that the SRS formed part of the basis for the transfer
recommendation, and they were provided with a list of the relevant factors considered in
computing the score, the personal information relied upon in assessing each factor, and the
reclassification score assigned to them. [122-125] [138]
The fresh evidence fails to satisfy the requirements of the Palmer test. Although it is clear that
instructions on how to compute the SRS existed at the time of the reclassification, the scoring
matrix would not have shown that the reclassification was arbitrary or that the total score was
inaccurate. Moreover, the SRS score only partially prompted the review of the inmates

classifications; the actual transfer decisions were based on the individual assessments of their
respective situations. There was no basis for granting the habeas corpus applications with or
without this additional information. [133-139]
Singh v. Canada (SCC, 1985)
Appellants claim Convention refugee status as defined in s. 2(1) of the Immigration Act, 1976.
The Minister of Employment and Immigration, acting on the advice of the Refugee Status
Advisory Committee, determined pursuant to s. 45 of the Act that none of the appellants was a
Convention refugee. The Immigration Appeal Board, acting under s. 71(1) of the Act, denied the
subsequent applications for redetermination of status and the Federal Court of Appeal refused
applications, made under s. 28 of the Federal Court Act , for judicial review of those decisions.
The Court considered whether the procedures for the adjudication of refugee status claims set out
in the Immigration Act, 1976 violate s. 7 of the Canadian Charter of Rights and Freedoms and
s. 2(e) of the Canadian Bill of Rights.
Held: The appeals should be allowed.
Per Dickson C.J. and Lamer and Wilson JJ.: Appellants, in the determination of their
claims, are entitled to assert the protection of s. 7 of the Charter which guarantees "everyone ...
the right to life, liberty and security of the person and the right not to be deprived thereof except
in accordance with the principles of fundamental justice". The term "everyone" in s. 7 includes
every person physically present in Canada and by virtue of such presence amenable to Canadian
law. The phrase "security of the person" encompasses freedom from the threat of physical
punishment or suffering as well as freedom from such punishment itself. A Convention refugee
has the right under s. 55 of the Immigration Act, 1976 not to "... be removed from Canada to a
country where his life or freedom would be threatened ...". The denial of such a right amounts to
a deprivation of "security of the person" within the meaning of s. 7 . Although appellants are not
entitled at this stage to assert rights as Convention refugees, having regard to the potential
consequences for them of a denial of that status if they are in fact persons with a "well-founded
fear of persecution", they are entitled to fundamental justice in the adjudication of their status.
The procedure for determining refugee status claims established in the Immigration
Act, 1976 is inconsistent with the requirements of fundamental justice articulated in s. 7 . At a
minimum, the procedural scheme set up by the Act should provide the refugee claimant with an
adequate opportunity to state his case and to know the case he has to meet. The administrative
procedures, found in ss. 45 to 48 of the Immigration Act, 1976, require the Refugee Status
Advisory Committee and the Minister to act fairly in carrying out their duties but do not envisage
an opportunity for the refugee claimant to be heard other than through his claim and the
transcript of his examination under oath. Further, the Act does not envisage the refugee
claimant's being given an opportunity to comment on the advice the Refugee Status Advisory
Committee has given the Minister. Under section 71(1) of the Act, the Immigration Appeal Board
must reject an application for redetermination unless it is of the opinion that it is more likely than
not that the applicant will be able to succeed. An application, therefore, will usually be rejected
before the refugee claimant has even had an opportunity to discover the Minister's case against

him in the context of a hearing. Such procedures do not accord the refugee claimant fundamental
justice and are incompatible with s. 7 of the Charter . Respondent failed to demonstrate that
these procedures constitute a reasonable limit on the appellants' rights within the meaning of s. 1
of the Charter . Pursuant to s. 52(1) of the Constitution Act, 1982 , s. 71(1) of the Immigration
Act, 1976 is, to the extent of the inconsistency with s. 7 , of no force and effect.
Section 24(1) of the Charter grants broad remedial powers to "a court of competent
jurisdiction". This phrase premises the existence of jurisdiction from a source external to the
Charter itself. These are appeals from the Federal Court of Appeal on applications for judicial
review under s. 28 of the Federal Court Act . Accordingly, this Court's jurisdiction is no greater
than that of the Federal Court of Appeal and is limited to decisions made on a judicial or
quasi-judicial basis. Only the decisions of the Immigration Appeal Board were therefore
reviewable. All seven cases are remanded to the Board for a hearing on the merits in accordance
with the principles of fundamental justice.
Blencoe v. B.C. (Human Rights Commission) (SCC, 2001)
In March 1995, while serving as a minister in the Government of British Columbia, the
respondent was accused by one of his assistants of sexual harassment. A month later, the premier
removed the respondent from Cabinet and dismissed him from the NDP caucus. In July and
August of 1995, two complaints of discriminatory conduct in the form of sexual harassment were
filed with the British Columbia Council of Human Rights (now the British Columbia Human
Rights Commission) against the respondent by two other women, W and S. The complaints
centered around various incidents of sexual harassment alleged to have occurred between March
1993 and March 1995. The respondent was informed of the first complaint in July 1995 and of
the second in September 1995. After the Commissions investigation, hearings were scheduled
before the British Columbia Human Rights Tribunal in March 1998, over 30 months after the
initial complaints were filed.
Following the allegations against the respondent, media attention was intense. He suffered from
severe depression. He did not stand for re-election in 1996. Considering himself
unemployable in British Columbia due to the outstanding human rights complaints against
him, the respondent commenced judicial review proceedings in November 1997 to have the
complaints stayed. He claimed that the Commission had lost jurisdiction due to unreasonable
delay in processing the complaints. The respondent alleged that the unreasonable delay caused
serious prejudice to him and his family which amounted to an abuse of process and a denial of
natural justice. His petition was dismissed by the Supreme Court of British Columbia. A
majority of the Court of Appeal allowed the respondents appeal and directed that the human
rights proceedings against him be stayed. The majority found that the respondent had been
deprived of his right under s. 7 of the Canadian Charter of Rights and Freedoms to security of
the person in a manner which was not in accordance with the principles of fundamental justice.
Held (Iacobucci, Binnie, Arbour and LeBel JJ. dissenting in part): The appeal should be allowed.

Per McLachlin C.J. and LHeureux-Dub, Gonthier, Major and Bastarache JJ.: The Charter
applies to the actions of the British Columbia Human Rights Commission. The Commission is
created by statute and all of its actions are taken pursuant to statutory authority. Bodies
exercising statutory authority are bound by the Charter even though they may be independent of
government. The Commission in this case is both implementing a specific government program
and exercising powers of statutory compulsion. Further, the Commission cannot escape Charter
scrutiny merely because it exercises judicial functions. The ultimate source of authority is
government. The Commission is carrying out the legislative scheme of the Human Rights Code
and must act within the limits of its enabling statute. There is clearly a governmental quality
to the functions of a human rights commission which is created by government to promote
equality in society generally. It is the administration of a governmental program that calls for
Charter scrutiny.
Section 7 of the Charter can extend beyond the sphere of criminal law, at least where there is
state action which directly engages the justice system and its administration. If a case arises in
the human rights context which, on its facts, meets the usual s. 7 threshold requirements, there is
no specific bar against such a claim and s. 7 may be engaged.
In order for s. 7 to be triggered, one must first establish that the interest in respect of which the
respondent asserted his claim falls within the ambit of s. 7 . The liberty interest protected by s. 7
is no longer restricted to mere freedom from physical restraint. Liberty is engaged where state
compulsions or prohibitions affect important and fundamental life choices. The s. 7 liberty
interest protects an individuals personal autonomy. In our free and democratic society,
individuals are entitled to make decisions of fundamental importance free from state
interference. Such personal autonomy, however, is not synonymous with unconstrained
freedom. Here, the state has not prevented the respondent from making any fundamental
personal choices. Therefore, the interests sought to be protected in this case do not fall within
the liberty interest protected by s. 7 .
The right to security of the person guaranteed by s. 7 protects the psychological integrity of an
individual. However, in order for this right to be triggered, the psychological harm must result
from the actions of the state and it must be serious. In this case, the direct cause of the harm to
the respondent was not the state-caused delay in the human rights process. While the respondent
has suffered serious prejudice in connection with the allegations of sexual harassment against
him, for s. 7 to be engaged there must be a sufficient causal connection between the state-caused
delay and the prejudice suffered. The most prejudicial impact on the respondent was caused not
by the actions of the Commission but rather by the events prior to the complaints the
allegations of the respondents assistant -- which caused the respondent to be ousted from
Cabinet and caucus as well as the actions by non-governmental actors such as the press. The
harm to the respondent resulted from the publicity surrounding the allegations themselves,
coupled with the political fallout which ensued. When the respondent began to experience
stigma, the human rights proceedings had yet to commence. Further, there is a pending civil suit
against the respondent for sexual harassment and Ws complaint against the Government on
these very same issues. The prolongation of stigma from ongoing publicity was likely regardless
of the delay in the human rights proceedings. At best, the respondent was deprived of a speedy

opportunity to clear his name. Lastly, the human rights process did not seriously exacerbate the
respondents prejudice. It is difficult to see how procedural delay could have seriously increased
damage already done to the respondents reputation.
Even accepting that the outstanding complaints may have contributed to the respondents stigma
to some degree, thereby causing some of his suffering, and assuming without deciding that there
is a sufficient nexus between the state-caused delay and the prejudice to the respondent, the state
interference with the respondents psychological integrity did not amount to a violation of his
right to security of the person. First, the s. 7 rights of liberty and security of the person do not
include a generalized right to dignity, or more specifically a right to be free from the stigma
associated with a human rights complaint. While respect for the inherent dignity of persons is
clearly an essential value in our free and democratic society which must guide the courts in
interpreting the Charter , this does not mean that dignity is elevated to a free-standing
constitutional right protected by s. 7 . The notion of dignity is better understood as an
underlying value. Like dignity, reputation is not a free-standing right. Neither is freedom from
stigma. Second, the state has not interfered with the ability of the respondent and his family to
make essential life choices. In order for security of the person to be triggered in this case, the
impugned state action must have had a serious and profound effect on the respondents
psychological integrity. It is only in exceptional cases where the state interferes in profoundly
intimate and personal choices of an individual that state-caused delay in human rights
proceedings could trigger the s. 7 security of the person interest. Here, the alleged right to be
free from stigma associated with a human rights complaint does not fall within this narrow
sphere. The state has not interfered with the respondents right to make decisions that affect his
fundamental being. The prejudice to the respondent is essentially confined to his personal
hardship.
There is no constitutional right outside the criminal context to be tried within a reasonable
time. The majority of the Court of Appeal erred in transplanting s. 11 (b) principles set out in the
criminal law context to human rights proceedings under s. 7 . Not only are there fundamental
differences between criminal and human rights proceedings, but, more importantly, s. 11 (b) of
the Charter is restricted to a pending criminal case.
There are remedies available in the administrative law context to deal with state-caused delay in
human rights proceedings. However, delay, without more, will not warrant a stay of proceedings
as an abuse of process at common law. There must be proof of significant prejudice which results
from an unacceptable delay. Here, the respondents ability to have a fair hearing has not been
compromised. Proof of prejudice has not been demonstrated to be of sufficient magnitude to
impact on the fairness of the hearing. Unacceptable delay may also amount to an abuse of
process in certain circumstances even where the fairness of the hearing has not been
compromised. Where there is no prejudice to hearing fairness, the delay must be clearly
unacceptable and have directly caused a significant prejudice to amount to an abuse of process.
It must be a delay that would, in the circumstances of the case, bring the human rights system
into disrepute. A court must be satisfied that the proceedings are contrary to the interests of
justice. There may also be abuse of process where conduct is oppressive. A stay is not the only
remedy available for abuse of process in administrative law proceedings and a respondent asking

for a stay bears a heavy burden. In this case, the respondent did not demonstrate that the delay
was unacceptable to the point of being so oppressive as to taint the proceedings. While the stress
and stigma resulting from an inordinate delay may contribute to an abuse of process, the delay in
processing the complaints was not inordinate.
The determination of whether a delay is inordinate is not based on the length of the delay alone,
but on contextual factors, including the nature of the case and its complexity, the purpose and
nature of the proceedings, and whether the respondent contributed to the delay or waived the
delay. Here, although the Commission took longer than is desirable to process the complaints,
the delay was not so inordinate as to amount to an abuse of process. The case may not have been
an extremely complicated one, but the various steps necessary to protect the respondents in the
context of the human rights complaints system take time. The trial judge found that only the 24month period between the filing of the complaints and the end of the investigation process
should be considered for the delay, stating that the Human Rights Tribunal could not be criticized
for not setting the hearing dates earlier as the respondent did not press for earlier dates. During
that 24-month period, there was no extended period without any activity in the processing of the
complaints, except for an inexplicable five months of inaction. The respondent challenged the
lateness of the complaints and brought forward allegations of bad faith and, as a result, the
process was delayed by eight months. The Commission should not be held responsible for
contributing to this part of the delay. When all the relevant factors are taken into account, in
particular the ongoing communication between the parties, the delay in processing the
complaints is not one that would offend the communitys sense of decency and fairness.
Nevertheless, in light of the lack of diligence displayed by the Commission, the Courts
discretion under s. 47 of the Supreme Court Act should be exercised to award costs against the
Commission in favour of the respondent and the complainants.
Per Iacobucci, Binnie, Arbour and LeBel JJ. (dissenting in part): This matter should be resolved
on the basis of administrative law principles. It is therefore unnecessary to express a definite
opinion on the application of s. 7 of the Charter .
Administrative delay that is determined to be unreasonable based on its length, its causes, and its
effects is abusive and contrary to administrative law principles. Unreasonable delays must be
identified within the specific circumstances of every case because not all delay is the same and
not all administrative bodies are the same. In order to differentiate reasonable and unreasonable
delay, courts must remain alive not only to the needs of administrative systems under strain, but
also to their good faith efforts to provide procedural protections to alleged wrongdoers. In
assessing the reasonableness of an administrative delay, three main factors should be balanced:
(1) the time taken compared to the inherent time requirements of the matter before the particular
administrative body; (2) the causes of delay beyond the inherent time requirements of the matter;
and (3) the impact of the delay. A consideration of these factors imposes a contextual analysis.
Here, inefficiency in the Human Rights Commissions handling of this matter has led to abuse of
process. First, although serious, the allegations of sexual discrimination against the respondent

did not raise complex issues and were not of a nature that could justify a prolonged
investigation. There was little to investigate. Even though the inherent time requirements were
minimal, in all it took the Commission approximately two years to determine that the complaints
should go to a hearing. The time from the initial filing of the complaints to the scheduled
hearing was approximately 32 months. While it is true that the Commissions decision to send
the matter to a hearing involved a number of steps, nothing in the inherent time requirements of
the case came close to requiring the delay that occurred. Second, although the respondent
sought to use the defences available to him, he did not become responsible for the sheer
inefficiency of the Commission in dealing with these matters. There was serious delay on both
complaints despite the respondents efforts to find a way to end it. The Commission admits that
it cannot explain what was going on for five months of the time that it was dealing with the
allegations against the respondent. This five-month lapse is the high mark of the Commissions
ineptitude. Third, although the administrative delay was not the only cause of the prejudice
suffered by the respondent, it contributed significantly to its aggravation and the Commission did
nothing to minimize the impact of the delay. The Commissions conduct in dealing with this
matter was less than acceptable. Further, the inefficient and delay-filled process at the
Commission harmed all parties involved in the process, including the complainants. In the end,
the specific and unexplained delay entitles the respondent to a remedy.
The choice of the appropriate remedy requires a careful analysis of the circumstances of the case
and imposes a balancing exercise between competing interests. In human rights proceedings, the
interest of the respondent, that of the complainants, and the public interest of the community
itself must be considered. The courts must also consider the stage of the proceedings which has
been affected by the delay. A distinction must be drawn between the process leading to the
hearing and the hearing itself. A different balance between conflicting interests may have to be
found at different stages of the administrative process. A stay of proceedings should not
generally appear as the sole or even the preferred form of redress. It should be limited to those
situations that compromise the very fairness of the hearing and to those cases where the delay in
the conduct of the process leading to the hearing would amount to a gross or shocking abuse of
the process. In those two situations, the interest of the respondent and the protection of the
integrity of the legal system become the paramount considerations. More limited and narrowly
focused remedies will be appropriate when it appears that the hearing will remain fair, in spite of
the delay, and when the delay has not risen to the level of a shocking abuse, notwithstanding its
seriousness. The first objective of any intervention by a court should be to make things happen,
where the administrative process is not working adequately. An order for an expedited hearing
would be the most practical and effective means of judicial action. An order for costs is a third
kind of remedy. It will not address the delay directly, but some of its consequences.
In this case, a stay of proceedings appears both excessive and unfair. First, in spite of the
seriousness of the problems faced by the respondent, the delay does not seem to compromise the
fairness of the hearing. The delay rather concerns the process leading to the hearing. This delay
arises from a variety of causes that do not evince an intent on the part of the Commission to harm
the respondent wilfully, but rather demonstrate grave negligence and significant structural
problems in the processing of the complaints. Second, a stay of proceedings in a situation that
does not compromise the fairness of the hearing or amount to shocking or gross abuse requires

the consideration of the interest of the complainants. The Court of Appeal completely omitted
any consideration of this interest. Here, an order for an expedited hearing should have been
considered as the remedy of choice. The stay should be lifted and the Commission should be
ordered to pay costs on a party-to-party basis to the respondent in this Court and in the British
Columbia courts. It is fair and appropriate to use the power conferred by s. 47 of the Supreme
Court Act , as the respondent has established that the process initiated against him was deeply
flawed and that its defects justified his search for a remedy, at least in administrative law.
Charkaoui v. Canada (MCI), (SCC, 2007)
The Immigration and Refugee Protection Act (IRPA ) allows the Minister of Citizenship and
Immigration and the Minister of Public Safety and Emergency Preparedness to issue a certificate
declaring that a foreign national or permanent resident is inadmissible to Canada on grounds of
security, among others (s. 77 ), and leading to the detention of the person named in the
certificate. The certificate and the detention are both subject to review by a judge of the Federal
Court, in a process that may deprive the person of some or all of the information on the basis of
which the certificate was issued or the detention ordered (s. 78 ). Once a certificate is issued, a
permanent resident may be detained, and the detention must be reviewed within 48 hours; in the
case of a foreign national, the detention is automatic and that person cannot apply for review
until 120 days after a judge determines the certificate to be reasonable (ss. 82 -84). The judges
determination on the reasonableness of the certificate cannot be appealed or judicially reviewed
(s. 80(3) ). If the judge finds the certificate to be reasonable, it becomes a removal order, which
cannot be appealed and which may be immediately enforced (s. 81 ).
Certificates of inadmissibility have been issued by the Ministers against the appellants C, H and
A. While C is a permanent resident, H and A are foreign nationals who had been recognized as
Convention refugees. All were living in Canada when they were arrested and detained on the
basis of allegations that they constituted a threat to the security of Canada by reason of
involvement in terrorist activities. C and H were released on conditions in 2005 and 2006
respectively, but A remains in detention. Both the Federal Court and the Federal Court of Appeal
upheld the constitutional validity of the IRPA s certificate scheme.
Held: The appeals should be allowed.
(1)

Procedure for determining reasonableness of certificate and for review of detention

The procedure under the IRPA for determining whether a certificate is reasonable and the
detention review procedures infringe s. 7 of the Charter . While the deportation of a non-citizen
in the immigration context may not in itself engage s. 7 , features associated with deportation
may do so. Here, s. 7 is clearly engaged because the person named in a certificate faces
detention pending the outcome of the proceedings and because the process may lead to the
persons removal to a place where his or her life or freedom would be threatened. Further, the
IRPA s impairment of the named persons right to life, liberty and security is not in accordance
with the principles of fundamental justice. The procedure for determining whether a certificate is

reasonable and the detention review procedure fail to assure the fair hearing that s. 7 requires
before the state deprives a person of this right. [13-14] [17-18] [65]
The right to a fair hearing comprises the right to a hearing before an independent and impartial
magistrate who must decide on the facts and the law, the right to know the case put against one,
and the right to answer that case. While the IRPA procedures properly reflect the exigencies of
the security context, security concerns cannot be used, at the s. 7 stage of the analysis, to excuse
procedures that do not conform to fundamental justice. Here, the IRPA scheme includes a
hearing and meets the requirement of independence and impartiality, but the secrecy required by
the scheme denies the person named in a certificate the opportunity to know the case put against
him or her, and hence to challenge the governments case. This, in turn, undermines the judges
ability to come to a decision based on all the relevant facts and law. The judges of the Federal
Court, who are required under the IRPA to conduct a searching examination of the
reasonableness of the certificate, in an independent and judicial fashion and on the material
placed before them, do not possess the full and independent powers to gather evidence that exist
in an inquisitorial process. At the same time, the person named in a certificate is not given the
disclosure and the right to participate in the proceedings that characterize the adversarial
process. The result is a concern that the judge, despite his or her best efforts to get all the
relevant evidence, may be obliged, perhaps unknowingly, to make the required decision based on
only part of the relevant evidence. Similar concerns arise with respect to the requirement that the
decision be based on the law. Without knowledge of the information put against him or her, the
person named in a certificate may not be in a position to raise legal objections relating to the
evidence, or to develop legal arguments based on the evidence. If s. 7 is to be satisfied, either
the person must be given the necessary information, or a substantial substitute for that
information must be found. The IRPA provides neither. [23] [27-31] [38] [45] [50-52] [61] [65]
The infringement of s. 7 is not saved by s. 1 of the Charter . While the protection of Canadas
national security and related intelligence sources constitutes a pressing and substantial objective,
and the non-disclosure of evidence at certificate hearings is rationally connected to this objective,
the IRPA does not minimally impair the rights of persons named in certificates. Less intrusive
alternatives developed in Canada and abroad, notably the use of special counsel to act on behalf
of the named persons, illustrate that the government can do more to protect the individual while
keeping critical information confidential than it has done in the IRPA . [66] [68] [70] [73] [85]
[87]
(2) Detention of foreign nationals
The detention of foreign nationals without warrant does not infringe the guarantee against
arbitrary detention in s. 9 of the Charter . The triggering event for the detention of a foreign
national is the signing under s. 77 of the IRPA of a certificate stating that the foreign national is
inadmissible on grounds of security, violation of human or international rights, serious
criminality or organized criminality. The security ground is based on the danger posed by the
named person, and therefore provides a rational foundation for the detention. However, the lack
of review of the detention of foreign nationals until 120 days after the reasonableness of the
certificate has been judicially confirmed (s. 84(2) ) infringes the guarantee against arbitrary
detention in s. 9 of the Charter , which encompasses the right to prompt review of detention

under s. 10 (c) of the Charter . While there may be a need for some flexibility regarding the
period for which a suspected terrorist may be detained, this cannot justify the complete denial of
a timely detention review. [88-89] [91] [93]
The infringement of ss. 9 and 10 (c) is not justified under s. 1 of the Charter . The IRPA
provides permanent residents who pose a danger to national security with a mandatory detention
review within 48 hours. It follows that denial of review for foreign nationals for 120 days after
the certificate is confirmed does not minimally impair the rights guaranteed by ss. 9 and 10 (c).
[93-94]
(3)

Extended periods of detention

While the s. 12 guarantee against cruel and unusual treatment cannot be used as a mechanism to
challenge the overall fairness of a particular legislative regime, indefinite detention without hope
of release or recourse to a legal process to procure release may cause psychological stress and
therefore constitute cruel and unusual treatment. The IRPA in principle imposes detention only
pending deportation, but it may in fact permit lengthy and indeterminate detention, or lengthy
periods of detention subject to onerous release conditions. The principles of fundamental justice
and the guarantee of freedom from cruel and unusual treatment require that, where a person is
detained or is subject to onerous conditions of release for an extended period under immigration
law, the detention or the conditions must be accompanied by a meaningful process of ongoing
review that takes into account the context and circumstances of the individual case. The person
must be accorded meaningful opportunities to challenge his or her continued detention or the
conditions of his or her release. [97-98] [105] [107]
Extended periods of detention pending deportation under the certificate provisions of the IRPA
do not violate ss. 7 and 12 of the Charter if accompanied by a process that provides regular
opportunities for review of detention, taking into account all of the relevant factors, including the
reasons for detention, the length of the detention, the reasons for the delay in deportation, the
anticipated future length of detention, if applicable, and the availability of alternatives to
detention. However, this does not preclude the possibility of a judge concluding at a certain
point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the
principles of fundamental justice. [110-116] [123]
(4)

Differential treatment of citizens and non- citizens

Since s. 6 of the Charter specifically provides for differential treatment of citizens and
non-citizens in deportation matters, a deportation scheme that applies to non-citizens, but not to
citizens, does not for that reason alone infringe s. 15 of the Charter . Even though the detention
of some of the appellants has been long, the record does not establish that the detentions at issue
have become unhinged from the states purpose of deportation. [129] [131]
(5)

Rule of law

The rule of law is not infringed by (1) the unavailability of an appeal of the designated judges
review of the reasonableness of the certificate; or (2) the provision for the issuance of an arrest

warrant by the executive in the case of a permanent resident, or for mandatory arrest without a
warrant following an executive decision in the case of a foreign national. First, there is no
constitutional right to an appeal, nor can such a right be said to flow from the rule of law in the
present context. Second, the rule of law does not categorically prohibit automatic detention, or
detention on the basis of an executive decision, and the constitutional protections surrounding
arrest and detention are set out in the Charter . [133] [136-137]
(6)

Remedy

The IRPAs procedure for the judicial approval of certificates is inconsistent with the Charter ,
and hence of no force or effect. This declaration is suspended for one year from the date of this
judgment. If the government chooses to have the reasonableness of Cs certificate determined
during the one-year suspension period, the existing process under the IRPA will apply. After that
period, H and As certificates will lose their reasonable status and it will be open to them to
apply to have the certificates quashed. Likewise, any certificates or detention reviews occurring
after the one-year delay will be subject to the new process devised by Parliament. Further,
s. 84(2) , which denies a prompt hearing to foreign nationals by imposing a 120-day embargo,
after confirmation of the certificate, on applications for release, is struck, and s. 83 is modified
so as to allow for review of the detention of a foreign national both before and after the
certificate has been deemed reasonable. [139-141]
Committee for Justice and Liberty v. Can. (SCC, 1975)
The issue in this appeal arose in connection with the organization of hearings by the National
Energy Board to consider competing applications for a Mackenzie Valley pipeline, i.e.
applications for a certificate of public convenience and necessity under s. 44 of the National
Energy Board Act, R.S.C. 1970, c. N-6. The Board assigned Mr. Crowe, Chairman of the Board,
and two other of its members to be the panel to hear the applications. The appellants were
recognised by the Board as interested persons under s. 45 of the Act. The appellants objected
to the participation of Mr. Crowe as a member of the panel because of reasonable apprehension
or reasonable likelihood of bias: Mr. Crowe became Chairman and Chief Executive Officer of
the National Energy Board on October, 15, 1973. Immediately prior to that date he was president
of the Canada Development Corporation, having assumed that position late in 1971 after first
having been a provisional director following the enactment of the Canada Development
Corporation Act, 1971 (Can.), c. 49. The objects of that Corporation included assisting in
business and economic development and investing in shares, securities, ventures, enterprises and
property to that end. As Corporation president and as its representative Mr. Crowe was associated
with the Gas Arctic-Northwest Project Study Group which considered the physical and economic
feasibility of a northern natural gas pipeline to bring natural gas to southern markets. The
Agreement setting up the Study Group brought together two groups of companies which merged
their efforts and pursuant to the agreement set up two companies of which Canadian Arctic Gas
Pipeline Limited was one. Mr. Crowe was an active participant in the Study Group as a member
of its Management Committee and a member and subsequently vice-chairman of its Finance, tax
and accounting committee and during his period of membership of the Management Committee
he participated in the seven meetings held during that time and joined in a unanimous decision of

the Committee on June 27, 1973, respecting the ownership and routing of a Mackenzie Valley
pipeline. The Canada Development Corporation remained a full participant in the Study Group
until long after the applications were made for certificates of public convenience and necessity
and until after the hearings had commenced, in effect to the time of the reference of the question
of reasonable apprehension of bias in Mr. Crowe to the Federal Court of Appeal. Further, during
the period of Mr. Crowes association with the Study Group as the representative of the Canada
Development Corporation the latter contributed $1,200,000 to the Study Group as its share of
expenses. The National Energy Board referred to the Federal Court of Appeal the following
question, Would the Board err in rejecting the objection and in holding that Mr. Crowe was not
disqualified from being a member of the panel on grounds of reasonable apprehension or
reasonable likelihood of bias? pursuant to the Federal Court Act, 1970-71-72 (Can.), c. 1,
s. 28(4). That Court answered in the negative.
Held (Martland, Judson and de Grandpr JJ. dissenting): The appeal should be allowed.
Per Laskin C.J. and Ritchie, Spence, Pigeon and Dickson JJ.: In dealing with applications under
s. 44 of the National Energy Board Act, the function of the Board is quasi-judicial, or, at least, is
a function which the Board must discharge in accordance with the rules of natural justice: and if
not necessarily the full range of such rules as would apply to a Court (though the Board is a court
of record under s. 10 of the Act) certainly to a degree that would reflect integrity of its
proceedings and impartiality in the conduct of those proceedings. A reasonable apprehension of
bias arises where there exists a reasonable probability that the judge might not act in an entirely
impartial manner. The issue in this situation was not one of actual bias. Thus the facts that
Mr. Crowe had nothing to gain or lose either through his participation in the Study Group or in
making decisions as chairman of the National Energy Board and that his participation in the
Study Group was in a representative capacity became irrelevant. The participation of Mr. Crowe
in the discussions and decisions leading to the application by Canadian Arctic Gas Pipeline
Limited for a certificate did however give rise to a reasonable apprehension, which reasonably
well-informed persons could properly have, of a biased appraisal and judgment of the issues to
be determined. The test of probability or reasoned suspicion of bias, unintended though the bias
may be, is grounded in the concern that there be no lack of public confidence in the impartiality
of adjudicative agencies, and emphasis is added to this concern in this case by the fact that the
Board is to have regard for the public interest.
Per Martland, Judson and de Grandpr JJ. dissenting: The proper test to be applied was correctly
expressed by the Court of Appeal. The apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to the question and obtaining thereon
the required information, the test of what would an informed person, viewing the matter
realistically and practicallyconclude? There is no real difference between the expression
found in the decided cases reasonable apprehension of bias, reasonable suspicion of bias or
real likelihood of bias but the grounds for the apprehension must be substantial. The question
of bias in a member of a court of justice cannot be examined in the same light as that in a
member of an administrative tribunal entrusted with an administrative discretion. While the basic
principle that natural justice must be rendered is the same its application must take into account
the special circumstances of the tribunal. By its nature the National Energy Board must be
staffed with persons of experience and expertise. The considerations which underlie its

operations are policy oriented. The basic principle in matters of bias must be applied in the light
of the circumstances of the case at bar. The Board is not a court nor is it a quasi-judicial body. In
hearing the objection of interested parties and in performing its statutory function the Board has
the duty to establish a balance between the administration of policies which they are duty bound
to apply and the protection of the various interests spelled out in s. 44 of the Act. In reaching its
decision the Board draws upon its experience, upon that of its own experts and upon that of all
agencies of the Government of Canada. The Board is not and cannot be limited to deciding the
matter on the sole basis of the representations made before it. In the circumstances of the case the
Court of Appeal rightly concluded that no reasonable apprehension of bias by reasonable, right
minded and informed persons exists.
Wewaykum Indian Band (SCC, 2004)
Two bands of the Laich-kwil-tach First Nation claim each others reserve land. Each reserve has
been possessed by the incumbent band since the end of the 19th century. Neither band claims
title based on an existing aboriginal or treaty right but each band, resting its claim on
contemporaneous documentation of the Department of Indian Affairs, says it would possess both
reserves but for breaches of fiduciary duty by the federal Crown. The bands seek declarations
against each other and equitable compensation from the federal Crown. The Cape Mudge Band,
the Wewaikai, seeks Reserve 11 and the Campbell River Band, the Wewaykum, claims
Reserve 12.
The claim of the Cape Mudge Band starts with the 1888 report of a federal government surveyor
which recommended the creation of Reserves 11 and 12. These reserves were not identified as
allocated to a particular band, but rather to the Laich-kwil-tach (Euclataw) Indians. The 1892
schedule of Indian reserves published by the Department of Indian Affairs, listing reserve
allocations to bands, repeated this allocation. By 1900, Reserves 11 and 12 were shown on the
schedule as allocated to the Wewayakai [Cape Mudge] band. On numerically ordered lists of
reserves, the name We-way-akay was inscribed opposite Reserve 7 and ditto marks were
inscribed below that name opposite Reserves 8 to 12. The Cape Mudge Band on that basis
claims both reserves although it was not, and never had been, in occupation of Reserve 11.
The claim of the Campbell River Band flows from a 1905 dispute between the two bands over
fishing rights, which led to a dispute over possession of Reserve 11. In a 1907 Resolution, the
Cape Mudge Band ceded any claim over Reserve 11 to the Campbell River Band subject to the
retention of common fishing rights. The effect of the resolution was recorded in a change to the
departmental schedule. The name of the We-way-akum band was entered opposite Reserve 11,
but in what became known as the ditto mark error, the ditto marks against Reserve 12, directly
beneath it, remained unchanged. The Campbell River Band relies on the departmental schedule,
as changed, as evidence of its right to both Reserve 11 and Reserve 12.
In 1912, the McKenna McBride Commission visited the proposed reserves in the Campbell
River area. It acknowledged that Reserve 11 was properly allocated to the Campbell River Band
and noted the error with respect to Reserve 12 which, because of the ditto marks, appeared in the

schedule as being also allocated to that band. In their respective submissions to the Commission,
in accordance with actual incumbency, the Campbell River Band made no claim to Reserve 12
and the Cape Mudge Band made no claim to Reserve 11. However, the ditto mark error on the
schedule was not corrected.
In 1924, by Orders-in-Council, the British Columbia government and the federal government
adopted the McKenna McBride recommendations with respect to Reserves 11 and 12. In 1928,
the Indian Commissioner recommended that Reserve 12, which had always been claimed by the
Cape Mudge Band, should officially be recognized as belonging to that band and the federal
schedule modified accordingly. Both bands retained legal counsel to investigate. In 1936 and
1937, each band issued a declaration listing its reserves. Neither band listed the others reserve it
now claims.
In 1938, British Columbia issued Order-in-Council 1036 which transferred administration and
control of the subject lands to the Crown in right of Canada. In 1943, Indian Affairs published a
corrected schedule of reserves listing Reserve 11 for the Campbell River Band and Reserve 12
for the Cape Mudge Band. No formal amendments were made to orders-in-council that had
appended the previous faulty schedules. The dispute resurfaced in the 1970s and, in 1985, the
Campbell River Band initiated its action against the Crown and the Cape Mudge Band. The
Cape Mudge Band counterclaimed for exclusive entitlement to both reserves and, in 1989, added
a claim against the Crown. After 80 days of evidence and submissions, the Federal Court, Trial
Division dismissed both bands claims and the Federal Court of Appeal upheld that decision.
Held: The appeals should be dismissed.
The legal requirements to create a reserve within the meaning of the Indian Act include an act by
the Crown to set apart Crown land for use by a band, an intent to create a reserve on the part of
persons with the authority to bind the Crown, and practical steps by the Crown and the Indian
band to realize that intent.
Reserve Creation in British Columbia
When British Columbia joined Confederation in 1871, Article 13 of the Terms of Union provided
for the creation of reserves. Federal-provincial cooperation was thus required because Crown
lands from which reserves would be established were retained as provincial property yet the
federal government had jurisdiction over Indians and lands reserved for Indians. The
reserve-creation process was completed in 1938 by virtue of B.C. Order-in-Council 1036 which
transferred to the federal Crown administration and control of land on which the reserves were to
be established. When the subject lands were transferred, the federal Crown intended to set apart
each reserve for the beneficial use and occupation of the present incumbent. Each band accepted
the status quo and made use of the reserves allocated to it.
The surrender provisions of the Indian Act did not apply to these pre-1938 adjustments because
(i) the resolution of a difference of opinion between sister bands of the same First Nation to
which the land had been allocated in the first instance should not be characterized as a surrender,

(ii) the lands were not Indian Reserves within the meaning of the Indian Act prior to 1938, and
(iii) in any event the operation of the surrender provisions of the Indian Act had been suspended
(to the extent they were capable of application) by Proclamation of the Privy Council made
December 15, 1876.
Rectification of Orders in Council
The Federal Court purported to rectify the faulty Schedule to Order-in-Council 1036. Judicial
correction of perceived errors in legislative enactments, in the rare instances where they can be
justified, is performed on the basis that the corrected enactment expresses the intent of the
enacting body. The clerical error is generally apparent on the face of the enactment itself. Here,
however, the mistake was made at the federal level in the Department of Indian Affairs. It was
noted but not corrected by the McKenna McBride Commission. The Schedules in their
uncorrected form were attached by the provincial government to its Order-in-Council 1036. The
permissible constitutional scope of the provincial intent in relation to lands reserved for
Indians was limited to the size, number and location of reserves to be transferred by it to the
administration and control of the Crown in right of Canada. The federal Order-in-Council has
been interpreted, in practice, without regard to the ditto mark error. In these circumstances,
rectification was not an appropriate remedy. The solution to these appeals does not lie in the law
of rectification but in the law governing the fiduciary duty alleged and the equitable remedies
sought by the appellant bands.
The Existence of a Fiduciary Duty
The existence of a public law duty does not exclude the possibility that the Crown undertook, in
the discharge of that public law duty, obligations in the nature of a private law duty towards
aboriginal peoples. A fiduciary duty, where it exists, is called into existence to facilitate
supervision of the high degree of discretionary control gradually assumed by the Crown over the
lives of aboriginal peoples.
However, even in the traditional trust context, not all obligations existing between the parties to a
well-recognized fiduciary relationship are themselves fiduciary in nature. Equally, not all
fiduciary relationships and not all fiduciary obligations are the same. They are shaped by the
demands of the situation. These observations are of particular importance in a case where the
fiduciary is also the government.
The Content of the Fiduciary Duty
The content of the Crowns fiduciary duty towards aboriginal peoples varies with the nature and
importance of the interest to be protected. The appellants seemed at times to invoke the
fiduciary duty as a source of plenary Crown liability covering all aspects of the Crown-Indian
band relationship. This overshoots the mark. The fiduciary duty imposed on the Crown does not
exist at large but in relation to specific Indian interests. Fiduciary protection accorded to Crown
dealings with aboriginal interests in land (including reserve creation) has not to date been
recognized by this Court in relation to Indian interests other than land outside the framework of
s. 35(1) of the Constitution Act, 1982 .

Prior to reserve creation, the Crown exercises a public law function under the Indian Act , which
is subject to supervision by the courts exercising public law remedies. At that stage, a fiduciary
relationship may also arise but, in that respect, the Crowns duty is limited to the basic
obligations of loyalty, good faith in the discharge of its mandate, providing full disclosure
appropriate to the subject matter, and acting with ordinary prudence with a view to the best
interest of the aboriginal beneficiaries. Once a reserve is created the Crowns fiduciary duty
expands to include the protection and preservation of the bands quasi-proprietary interest in the
reserve from exploitation. The Crown must use diligence to protect a bands legal interest from
exploitative bargaining with third parties or from exploitation by the Crown itself.
When exercising ordinary government powers in matters involving disputes between Indians and
non-Indians, the Crown was (and is) obliged to have regard to the interest of all affected parties,
not just the Indian interest. The Crown can be no ordinary fiduciary; it wears many hats and
represents many interests, some of which cannot help but be conflicting.
Here, the federal Crowns mandate was to create a new interest for the bands in lands not subject
to treaty or aboriginal rights claims. The nature and importance of the appellant bands interest
in these lands prior to 1938, and the Crowns intervention as the exclusive intermediary to deal
with others, including the province, on their behalf, imposed a fiduciary duty on the Crown but
there is no persuasive reason to conclude that the obligations of loyalty, good faith and disclosure
of relevant information were not fulfilled. After the creation of the reserve, the Crown did
preserve and protect each bands legal interest in its allocated reserve.
By the time the reserves creation process was completed in 1938, each of the appellant bands had
formally abandoned the claim it now asserts to the others reserve. They had manifested on
several occasions their acknowledgement that the beneficial interest in Reserve 11 resided in the
Campbell River Band and the beneficial interest in Reserve 12 resided in the Cape Mudge
Band. The Band leadership in those years, whose conduct is now complained of, were
autonomous actors, apparently fully informed, who intended in good faith to resolve a
difference of opinion with a sister band. They were not dealing with non-Indian third parties.
It is patronizing to suggest, on the basis of the evidentiary record, that they did not know what
they were doing, or to reject their evaluation of a fair outcome.
Defences to Equitable Remedies
Enforcement of equitable duties by equitable remedies is subject to the usual equitable defences,
including laches and acquiescence. Equitable remedies require equitable conduct by the
claimant and are always subject to the discretion of the court.
Both branches of the doctrine of laches and acquiescence are applicable in this case: conduct
equivalent to a waiver is found in the declarations, representations and failures to assert the
alleged rights in circumstances that required assertion; and prosecution of the claim would, in
each case, be unreasonable because each band relied on the status quo and improved its reserve

under the understanding that the other band made no further claim. All of this was done with
sufficient knowledge of the underlying facts relevant to a possible claim.
On the evidence, no fiduciary duty has been breached and no equitable remedy is available
either to dispossess an incumbent band that is entitled to the beneficial interest, or to require the
Crown to pay equitable compensation for its refusal to bring about such a wrongful
dispossession.
Application of Limitation Periods
In any event, the appellant bands claims are barred by the expiry of the applicable limitation
periods. Section 39(1) of the Federal Court Act incorporates by reference the applicable British
Columbia limitation legislation. The Campbell River Bands claim for possession of Reserve 12
was complete no later than in 1938 and was subject to a 20-year limitations period under s. 16 of
the 1897 B.C. Statute of Limitations. The Cape Mudge Bands claim for possession of
Reserve 11 arose when the Campbell River Band went into possession of that reserve prior to
1888 and was extinguished around the time the band signed the 1907 Resolution. Even if the
running of the limitation periods was postponed due to a lack of pertinent information, all
relevant facts were known to both bands when they made their declarations in 1936 and 1937.
The limitation periods applicable to the claims for possession, therefore, expired no later than
1957.
As to breach of fiduciary duty, the 1897 Statute of Limitations, in force between 1897 and 1975,
imposed no limitation on such claims. The transitional provisions of the 1975 Limitations Act
therefore apply. By virtue of ss. 3(4) and 14(3) of the 1975 Act, the actions based on breach of
fiduciary duty were barred as of July 1, 1977. In any case, the claims asserted in these
proceedings were all caught by the 30-year ultimate limitation period in s. 8 of the 1975 Act.
Brosseau v. Alberta (Securities Commission) (SCC, 1990)
Appellant Brosseau, in his capacity as solicitor, prepared the prospectus of a company that later
went into bankruptcy. The R.C.M.P. and the Alberta Securities Commission conducted separate
investigations into the affairs of the company. The investigation initiated by the Securities
Commission found no evidence of any violations of the Securities Act. The R.C.M.P.
investigation, however, resulted in the laying of criminal charges against Brosseau and a
colleague, Barry. The charges related to the making of false or misleading statements in the
prospectus under the `old' Securities Act, R.S.A. 1970, c. 333.
The Commission's investigation was reopened when the Assistant Deputy Minister of the
Department of Consumer and Corporate Affairs informed the Chairman that litigation was
pending concerning the collapse of the company, and that the Alberta Government was named as
a party. There was a suggestion in some documents that the Alberta Government felt that any
liability which attached to it would do so because of negligence on the part of the Commission.
The Chairman forwarded the materials received from the Assistant Deputy Minister to the

Deputy Director, Enforcement, of the Securities Commission. A review was conducted, and a
copy of the Commission's staff report was given to the Chairman in March 1984.
The Alberta Securities Commission gave a notice of hearing to determine if Brosseau and
Barry should be made subject to a cease trading order and/or possible deprivation of certain
statutory exemptions. Brosseau and Barry, after their acquittal on the criminal charges in 1985,
brought a preliminary application before the Alberta Securities Commission seeking an order and
declaration that the Commission had no jurisdiction to hold a hearing against them. The
Commission ruled it had jurisdiction pursuant to s. 26 of the "new" Securities Act, S.A. 1981, c.
S-6.1, denied the application and directed that the hearing continue. An appeal to the Alberta
Court of Appeal was dismissed. Barry discontinued his appeal before this Court and appellant
Brosseau restricted his to two issues. The first was whether or not there was a reasonable
apprehension of bias given the fact that the Commission Chairperson, in his investigative
capacity, had received a report prior to the hearing from the Deputy Director of Enforcement.
The second was whether or not the action taken by the Commission under the "new" Securities
Act attracted the presumption against the retrospectivity of statutes. Before this Court, the
appellant abandoned all argument based on s. 11 of the Charter.
Held: The appeal should be dismissed.
The facts of this case neither raise a reasonable apprehension of bias nor do they undermine
public confidence in the impartiality of the Securities Commission.
The principle that no one should be a judge in his own action underlies the doctrine of
"reasonable apprehension of bias". An exception occurs, however, where an overlap of functions
is authorized by statute.
It was not necessary to decide to what extent the Chairman initiated the investigation because
the Act contemplated his involvement at several stages of the proceedings.
The broad and formal investigatory powers granted the Commission by s. 28 of the Securities
Act suggest that the Commission has the implied authority to conduct a more informal internal
review. The Commission logically would first investigate the facts before ordering a s. 28
investigation. Only if irregularities were uncovered would the Commission proceed to either a
more thorough s. 28 investigation or a hearing to probe more deeply into the matter.
Securities commissions, by their nature, undertake several different functions. The
Commission's empowering legislation clearly indicates that the Commission was not meant to
act like a court in conducting its internal reviews and certain activities, which might otherwise be
considered "biased", form an integral part of its operations. A section 28 investigation is of a
different nature from this type of proceeding.
A security commission's protective role, which gives it a special character, its structure and
responsibilities, must be considered in assessing allegations of bias. A "reasonable apprehension
of bias" affecting the Commission as a whole cannot be said to exist if the Chairman did not act

outside of his statutory authority and if there were no evidence to show involvement beyond the
Chairman's fulfilling his statutory duties.
The Chairman, as Chief Executive Officer of the Commission, did not exceed the bounds of
authority of his office. The report in question was also made available to the appellant.
There was no element of "improper purpose" in the Commission's conduct of the proceedings
against the appellant. Any suspicion that the Commission's actions were motivated with a view
to escaping its own potential liability in any pending litigation was not supported by the
evidence.
The presumption against retrospectivity, that statutes are not to be construed as having
retrospective operation unless such a construction is expressly or by necessary implication
required by the language of the Act, applies only to "penal" statutes. It does not apply to statutes
imposing a penalty related to a past event, so long as the goal of the penalty is not to punish the
person in question, but to protect the public. The provisions here are designed to disqualify
persons from trading in securities that the Commission found to have committed acts calling
their business integrity into question. The presumption against the retrospective effect of statutes
is effectively rebutted because these provisions in question are designed to protect the public in
keeping with the general regulatory role of the Commission.
Chretien v. Gomery Commission (FCC, 2008)
This was an application for judicial review in respect of the report of the Commission of Inquiry
into the Sponsorship Program and Advertising Activities entitled Who is Responsible?: Fact
Finding Report. The Commission was established as a result of questions raised in the Auditor
General of Canadas 2003 Report concerning the federal governments Sponsorship Program. Its
Commissioner, the Honourable Justice John H. Gomery, was given a double mandate to
investigate and report on the program, and to make recommendations based on his factual
findings. In compliance with his mandate, the Commissioner was required to submit two reports.
The scope of this judicial review was limited to the first report, wherein the Commissioner was
to provide his factual conclusions after completing the hearings of Phase I of his mandate.
At issue was whether Commissioner Gomery breached the duty of procedural fairness by, inter
alia, demonstrating a reasonable apprehension of bias.
Held, the application should be allowed.
The requirements of procedural fairness depend on the nature and function of the administrative
board. The five factors identified in Baker v. Canada (Minister of Citizenship and Immigration)
were considered to determine the content of the duty of fairness owed to persons appearing
before the Commission. Although the nature of the proceedings did not provide for the same
level of procedural fairness as that required in a trial, the potential damage that the findings of
the Commission could have on the reputations of the parties involved in the investigation was of

such serious consequence that a high degree of fairness was required. The standard of
impartiality expected of a decision maker is variable depending on his or her role and function.
There was more than sufficient evidence to find that an informed person, viewing the matter
realistically and practically and having thought the matter through, would find a reasonable
apprehension of bias on the part of the Commissioner. His comments on the record, to the media,
and after the inquiry had concluded, viewed cumulatively, not only indicated that he prejudged
issues but also that he was not impartial toward the applicant. Among other things, the
Commissioner was not in a position to confirm the findings of the Auditor General or to
conclude that the Sponsorship Program was run in a catastrophically bad way after conducting
only three months of hearings, as he had not heard the testimony of all witnesses who were to
appear before the Commission. Also, to conclude that the mismanagement was catastrophic
before hearing all the evidence undermined the very purpose of the Commission of Inquiry,
creating a sense that the proceedings were perfunctory in nature. Other comments made by
Commissioner Gomery before all the evidence had been heard trivialized the proceedings and
bore a pejorative connotation. Still others damaged the applicants reputation by fostering
suspicion of the applicant and raising doubts about his integrity. The applicant was put in a
position in which he was caused to appear before a commission that had publicly questioned his
conduct and integrity before he had even appeared before it. The Commissioners preoccupation
with the media outside the hearing room had a detrimental impact on the fairness of the
proceedings. The only appropriate forum in which a decision maker is to become engaged is
within the hearing room of the very proceeding over which he or she is presiding. Comments
revealing impressions and conclusions related to the proceedings should not be made extraneous
to the proceedings either prior, concurrently or even after the proceedings have concluded. For
these reasons, the findings in the Commissioners report, as they related to the applicant, were set
aside.
Old St. Boniface v. City of Winnipeg (SCC, 1990)
Winnipeg approved a proposed land development in Old St. Boniface, and adopted the
recommendations of the Finance Committee, the Community Committee, the Planning and
Community Services Committee and, ultimately, City Council that the land in question be
rezoned to permit the erection of two condominium towers, that certain streets be closed and that
the streets, together with other city-owned land, be sold to the developer. Prior to public
hearings before the Community Committee on the application for rezoning submitted by the
intended purchaser of the lands, a municipal councillor had been personally involved in the
planning of the proposed development and had appeared as advocate in support of the
application at in camera private meetings of the Finance Committee. An election intervened
during the period between public meetings in which the councillor took part, and he was reelected. At the public meetings, he did not disclose his earlier involvement with the application.
Before the re-zoning by-law was passed, the appellant attacked the process by way of
originating motion filed in the Court of Queen's Bench. The motions judge quashed the
Committee's decision, prohibited the passing of the rezoning by-law, and adjourned the
appellant's application to quash the street-closing by-law. The City was further prohibited from

implementing or acting upon the street-closing by-law until further ordered by the court. The
respondents' appeal to the Court of Appeal for Manitoba was allowed and the appellant's crossappeal concerning the street-closing by-law was dismissed.
The issues raised in this appeal are: (1) whether the municipal councillor was disqualified by
reason of bias from participating in the proceedings of the Community Committee; (2) whether
the application for rezoning, which was made by someone other than the owner of the subject
land, complied with s. 609(1) of the City of Winnipeg Act; (3) whether the zoning by-law failed
to comply with the Greater Winnipeg development plan ("Plan Winnipeg"); and (4) whether the
Community Committee acted in bad faith or in violation of a reasonable expectation of
consultation.
Held (La Forest, L'Heureux-Dub and Cory JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Wilson, Sopinka, Gonthier, and McLachlin JJ.: Wiswell v. Metropolitan
Corporation of Greater Winnipeg was distinguished. A flexible approach based on the context is
now taken with respect to the test to be applied for disqualifying bias. Here, it would not be
appropriate to apply the test of a reasonable apprehension of pre-judgment with full vigour
simply because of the councillor's appearance as advocate for the development proposal before
the Finance Committee. The Legislature could not have intended that the rule requiring a tribunal
to be free of an appearance of bias apply to members of Council with the same force as in the
case of other tribunals whose character and functions more closely resemble those of a court.
Some degree of prejudgment is inherent in the role of a municipal councillor. Nor, however,
could the Legislature have intended that there be a hearing before a body which has already
made an irreversible decision.
The applicable test is that objectors or supporters be heard by members of Council who are
capable of persuasion. This test is consistent with the functions of a municipal councillor and
enables him or her to carry out the political and legislative duties entrusted to the councillor. The
party alleging disqualifying prejudgment must establish that any representations at variance with
the adopted view would be futile. Statements by individual members of Council, while they may
give rise to an appearance of bias, will not satisfy the test unless the court concludes that they are
the expression of a final opinion on the matter.
On the other hand, there is nothing inherent in the councillors' hybrid functions that would
make it mandatory or desirable to excuse them from the requirement that they refrain from
dealing with matters in respect of which they have either a personal or other interest. Where
such an interest is found, both at common law and by statute, a member of Council is
disqualified if the interest is so related to the exercise of public duty that a reasonably wellinformed person would conclude that it might influence the exercise of that duty. The motions
judge erred in applying the reasonable apprehension of bias test once he had found that the
councillor whose impartiality was in question had no personal interest in the development, either
pecuniary or by reason of a relationship with the developer.

Per Lamer C.J.: The reasons of La Forest J. in Save Richmond Farmland Society v. Richmond
(Township) were agreed with. Applying his test to the facts of this case, the appeal should be
dismissed.
On the issue of conformity with Plan Winnipeg, the reasons of Sopinka J. were agreed with.
Per La Forest, L'Heureux-Dub and Cory JJ. (dissenting): The City was precluded from
adopting the zoning by-law in question without first amending Plan Winnipeg. The zoning
power of Council is constrained by the community plan, the amendment of which involves
consultation with community committees and requires the entire council, rather than simply the
executive policy committee, to deliberate on the plan by-law. In adopting a by-law which does
not conform to the plan, Council oversteps its statutory authority.
The proposed condominium represented a derogation from Plan Winnipeg. If the City wished
to permit development that conflicted with the policy of the Plan, it was first required to seek
amendment to the Plan. The procedures for amendment provide for public participation at all
stages of policy development and it was not open to Council to circumvent the public process by
the simple passage of a zoning by-law.
Judicial review is not inappropriate in this case. The designated commissioner, who
determines whether a by-law conforms to the Plan, is not independent of Council but, rather, is
appointed by and may be dismissed by Council. Furthermore, there is no privative clause. It is
therefore open to the courts to overturn a decision which is legally incorrect. The land in
question was clearly designated as parkland on the Plan policy map and the condominium
development could not be said to conform to the Plan.
Newfoundland Tel. Co. v. Newfoundland (SCC, 1992)
Respondent Board, whose members are appointed by cabinet subject only to the qualification
that they not be employed by or have an interest in a public utility, regulates appellant. One
commissioner, a former consumers' advocate playing the self-appointed role of champion of
consumers' rights on the Board, made several strong statements which were reported in the press
against appellant's executive pay policies before a public hearing was held by the Board into
appellant's costs. When the hearing commenced, appellant objected to this commissioner's
participation on the panel because of an apprehension of bias. The Board found that it had no
jurisdiction to rule on its own members and decided that the panel would continue as
constituted. A number of public statements relating to the issue before the Board were made by
this commissioner during the hearing and before the Board released its decision which (by a
majority which included the commissioner at issue) disallowed some of appellant's costs. A
minority would have allowed these costs. Appellant appealed both the order of the Board and
the Board's decision to proceed with the panel as constituted to the Court of Appeal.
The Court of Appeal found that the Board had complete jurisdiction to determine its
own procedures and all questions of fact and law and that it declined to exercise its jurisdiction
when it refused to remove the commissioner from the panel. Although the court concluded that

there was a reasonable apprehension of bias, it held that the Board's decision was merely
voidable and that, given that the commissioner's mind was not closed to argument, the Board's
order was valid.
The issues under consideration here were: (1) the extent to which an administrative
board member may comment on matters before the board and, (2) the result which should obtain
if a decision of a board is made in circumstances where a reasonable apprehension of bias is
found.
Held: The appeal should be allowed.
The duty of fairness applies to all administrative bodies. The extent of that duty,
however, depends on the particular tribunal's nature and function. The duty to act fairly includes
the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator
is biased. Because it is impossible to determine the precise state of mind of an adjudicator who
has made an administrative board decision, an unbiased appearance is an essential component of
procedural fairness. The test to ensure fairness is whether a reasonably informed bystander
would perceive bias on the part of an adjudicator.
There is a great diversity of administrative boards. Those that are primarily
adjudicative in their functions will be expected to comply with the standard applicable to courts:
there must be no reasonable apprehension of bias with regard to their decision. At the other end
of the scale are boards with popularly elected members where the standard will be much more
lenient. In such circumstances, a reasonable apprehension of bias occurs if a board member
pre-judges the matter to such an extent that any representations to the contrary would be futile.
Administrative boards that deal with matters of policy will be closely comparable to the boards
composed of elected members. For those boards, a strict application of a reasonable
apprehension of bias as a test might undermine the very role which has been entrusted to them by
the legislature.
A member of a board which performs a policy-formation function should not be
susceptible to a charge of bias simply because of the expression of strong opinions prior to the
hearing. As long as those statements do not indicate a mind so closed that any submissions
would be futile, they should not be subject to attack on the basis of bias. Statements manifesting
a mind so closed as to make submissions futile would, however, even at the investigatory stage,
constitute a basis for raising an issue of apprehended bias. Once the matter reaches the hearing
stage a greater degree of discretion is required of a member.
The statements at issue here, when taken together, indicated not only a reasonable
apprehension of bias but also a closed mind on the commissioner's part on the subject. Once the
order directing the holding of the hearing was given, the Utility was entitled to procedural
fairness. At the investigative stage, the "closed mind" test was applicable but once matters
proceeded to a hearing, a higher standard had to be applied. Procedural fairness at that stage
required the commission members to conduct themselves so that there could be no reasonable
apprehension of bias.

A denial of a right to a fair hearing cannot be cured by the tribunal's subsequent

decision. A decision of a tribunal which denied the parties a fair hearing cannot be simply
voidable and rendered valid as a result of the subsequent decision of the tribunal. The damage
created by apprehension of bias cannot be remedied. The hearing, and any subsequent order
resulting from it, must be void. The order of the Board of Commissioners of Public Utilities was
accordingly void.
Canadian Pacific v. Matsqui Indian Band (SCC, 1995)
Amendments to the Indian Act enabled First Nations bands to pass their own by-laws for the
levying of taxes against real property on reserve lands. The appellant bands each developed
taxation and assessment by-laws which were implemented following the Minister's approval.
The Matsqui Band's assessment by-law provided for the appointment of Courts of Revision to
hear appeals from the assessments, the appointment of an Assessment Review Committee to hear
appeals from the decisions of the Courts of Revision and, finally, an appeal on questions of law
to the Federal Court, Trial Division from the decisions of the Assessment Review Committee.
The other bands provided for a single hearing before a Board of Review, with an appeal to the
Federal Court, Trial Division. All the by-laws provided that members of the appeal tribunals
could be paid, but did not mandate that they indeed be paid, and gave no tenure of office so that
members might not be appointed to sit on future assessment appeals. Members of the bands
could be appointed to the tribunals.
The appeals were heard concurrently at all levels and turned on essentially identical
facts. Each appellant sent the respondent, Canadian Pacific Limited ("CP"), a notice of
assessment in respect of the land forming its rail line which ran through the reserves. The
Matsqui Band also sent a notice of assessment to the respondent, Unitel Communications Inc.,
which laid fibre optic cables on the CP land.
The respondents commenced an application for judicial review in the Federal Court,
Trial Division, requesting that the assessments be set aside. CP claimed that its land could not be
taxed by the appellant bands because it possessed fee simple in the rail line and the rail line
therefore formed no part of the reserve lands. The appellants brought a motion to strike the
respondents' application for judicial review on the grounds that: (a) the application was directed
against a decision which could not be the subject of judicial review because of an eventual right
of appeal to the Federal Court, Trial Division or, alternatively; (b) the assessment by-laws
provided for an adequate alternative remedy -- an eventual right of appeal to the Federal Court,
Trial Division. The motions judge accepted the second of these arguments and struck out the
respondents' application for judicial review. The Federal Court of Appeal allowed an appeal
from this decision, set it aside and dismissed the appellants' motion to strike. At issue was
whether the motions judge properly exercised his discretion to strike the respondents' application
for judicial review, thereby requiring them to pursue their jurisdictional challenge through the
appeal procedures established by the appellant bands. The determination of whether or not the
land was "in the reserve" was not at issue.

Held (L'Heureux-Dub, Sopinka, Gonthier and Iacobucci JJ. dissenting): The appeal
should be dismissed.
Adequacy of the Appeal Tribunals and the Exercise of Discretion on Judicial Review
Per Lamer C.J. and L'Heureux-Dub, Sopinka, Gonthier, Cory and Iacobucci JJ.:
Administrative tribunals can examine the boundaries of their jurisdiction although their decisions
in this regard lack the force of res judicata. Their determinations are reviewable on a correctness
standard and will generally be afforded little deference. Here, the jurisdiction of the appeal
tribunals includes both the classification of taxable property and the valuation of that property, as
the words "assessment"/"valuation" used in s. 83(3) of the Indian Act refer to the entire
process undertaken by tax assessors. A purposive analysis favours this "process approach".
Parliament clearly intended the bands to assume control over the assessment process on the
reserves, since the entire scheme would be pointless if assessors were unable to engage in the
preliminary determination of whether land should be classified as taxable and thereby placed on
the taxation rolls.
The Federal Court, Trial Division and the appeal tribunals established under s. 83(3)
of the Indian Act have concurrent jurisdiction to hear and decide the question of whether the
respondents' land is "in the reserve". In keeping with the traditionally discretionary nature of
judicial review, judges of the Federal Court, Trial Division have discretion in determining
whether judicial review should be undertaken. In determining whether to undertake judicial
review rather than requiring an applicant to proceed through a statutory appeal procedure, courts
should consider: the convenience of the alternative remedy, the nature of the error, and the
nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities).
The category of factors should not be closed, as it is for courts in particular circumstances to
isolate and balance the factors that are relevant.
The adequacy of the statutory appeal procedures created by the bands, and not simply
the adequacy of the appeal tribunals, had to be considered because the bands had provided for
appeals from the tribunals to the Federal Court, Trial Division. Certain factors are relevant only
to the appeal tribunals (i.e., the expertise of members, or allegations of bias) or to the appeal to
the Federal Court, Trial Division (i.e., whether this appeal is intra vires the bands). In applying
the adequate alternative remedy principle, all these factors must be considered in order to assess
the overall statutory scheme.
It was not an error for the motions judge to consider the policy underlying the
scheme in determining how to exercise his discretion to undertake judicial review. He could
reasonably conclude that, since the scheme was part of the policy promoting Aboriginal selfgovernment, allowing the respondents to circumvent the appeal procedures would be detrimental
to the overall scheme.
The bands have jurisdiction to create by-laws with appeals to the Federal Court, Trial
Division. Section 18.5 of the Federal Court Act does not set down conditions for the creation
of statutory appeals from decisions of federal tribunals; it only limits the judicial review powers
of the Federal Court, Trial Division where a statutory right of appeal exists. Section 24(1)

provides that the Trial Division has exclusive original jurisdiction to hear and determine all
appeals that, under any Act of Parliament, may be taken to the court. The appeal procedures here
fell squarely within this section because they were authorized "under" s. 83(3) of the Indian Act .
Parliament intended the bands to have considerable scope for creating appeal
procedures through their by-laws, with the caveat that such procedures would be "subject to the
approval of the Minister" (s. 83(1) ). The Minister approved all of the by-laws at issue, clearly
believing that the power to create appeals to the Federal Court, Trial Division was intra vires the
bands. The courts should not narrow the scope of possible appeal procedures available to the
bands.
The question to be determined was whether the appeal tribunals here were adequate
fora; it was not necessary to consider whether they were better fora than the courts. They
allowed for a wide-ranging inquiry into all of the evidence and were considered by Parliament to
be equipped to deal with complex issues that might come before them. Section 18.3(1) of the
Federal Court Act allows an appeal tribunal to seek the guidance of the courts if it encounters
legal, procedural or other issues which it cannot resolve.
It was reasonable for the motions judge to consider the following factors in
exercising this discretion: (1) the tribunals were adequate for purposes of conducting a farreaching and extensive inquiry at first instance; (2), the statutory appeal procedure provided an
appeal from the tribunals to the Federal Court, Trial Division where a decision could be taken
with the force of res judicata; and (3), the policy of promoting the development of Aboriginal
governmental institutions favoured resolving the dispute within the statutory appeal procedures.
Per La Forest J.: The Federal Court, Trial Division and the appeal tribunals
established under s. 83(3) of the Indian Act have concurrent jurisdiction to address the question
whether the respondents' land is "in the reserve". The motions judge, however, did not exercise
his discretion properly in deciding that the band appeal tribunal system constitutes an adequate
alternative remedy in this context. Determining whether the respondents' land is "in the reserve"
is a jurisdictional question that brings into play discrete and technical legal issues falling outside
the specific expertise of the band appeal tribunals. It is ultimately a matter for the judiciary. The
band appeal procedure is not an adequate remedy since any decision by a band appeal tribunal
regarding this question will lack the force of res judicata and will be reviewable by the Federal
Court, Trial Division on a standard of correctness. The respondents should be allowed the
opportunity to have this jurisdictional question determined with the force of res judicata by the
Federal Court at the outset without being compelled to proceed through a lengthy, and possibly
needless, band appeal process.
Per McLachlin and Major JJ.: The adequate alternative remedies principle does not
apply to a jurisdictional issue. Here, the assessment review board has jurisdiction to determine
all questions relating to the valuation of land "within the reserve" but has no jurisdiction to
determine whether a parcel of land is "within the reserve". Deciding whether land is "within the
reserve" or not requires consideration of a variety of factors, such as real property law, survey
results, and treaty interpretations, in which the board has no expertise and over which there is no
evidence that Parliament had any intention to grant the board jurisdiction.

The board here would be deciding upon its jurisdiction when deciding whether or not
the land was "within the reserve" as opposed to acting within its jurisdiction. A court, on an
application for judicial review on this issue, could apply the standard of correctness. Where the
fundamental issue of lack of jurisdiction is raised as the only issue, the respondent should not be
compelled to proceed needlessly to the appeal tribunal because it is not an adequate alternative
remedy in that it cannot determine the question. Rather, a party can either have the tribunal
consider the jurisdictional matter (but this option is not mandatory) or have recourse directly to
court on the jurisdictional matter.
Institutional Impartiality
Per Lamer C.J. and L'Heureux-Dub, Sopinka, Gonthier, Cory and Iacobucci JJ.:
Impartiality refers to the state of mind or attitude of the decison-maker whereas independence
involves both the individual independence of members of the tribunal and the institutional
independence of the tribunal. Institutional impartiality and institutional independence were both
at issue here. With respect to impartiality, if no reasonable apprehension of bias arises in the
mind of a fully informed person in a substantial number of cases, allegations of an apprehension
of bias cannot be brought on an institutional level but must be dealt with on a case-by-case
basis. This determination must be made having regard for a number of factors including, but not
limited to, the potential for conflict between the interests of tribunal members and those of the
parties who appear before them.
No apprehension of bias arose from want of structural impartiality. It is appropriate
to have band members sit on appeal tribunals to reflect community interests. A pecuniary
interest that members of a tribunal might be alleged to have, such as an interest in increasing
taxes to maximize band revenue, is far too attenuated and remote to give rise to a reasonable
apprehension of bias at a structural level. No personal and distinct interest in money raised
exists on the part of tribunal members, and any potential for conflict between the interests of
members of the tribunal and those of parties appearing before them was speculative at this stage.
Any allegations of bias which might arise should be dealt with on a case-by-case basis.
Institutional Independence
Per L'Heureux-Dub, Sopinka, Gonthier and Iacobucci JJ.: The reasons of
Lamer C.J. were agreed with on all issues, except the issue of lack of institutional independence,
as a ground for finding the motions judge erred in exercising his discretion to refuse judicial
review.
First, the issue of bias was not properly raised at first instance. Second, appellate
courts must defer to the exercise of the motion judge's discretion to strike out unless the
conclusion is unreasonable or has been reached on the basis of irrelevant or erroneous
considerations, a wrong principle or as a result of insufficient or no weight having been given to
a relevant consideration. The discretion to exercise judicial review is not being assessed de novo
in this Court. The motions judge here did not err in declining to consider the question of
reasonable apprehension of lack of institutional independence at this stage.

The essential conditions of institutional independence in the judicial context need not
be applied with the same strictness in the case of administrative tribunals. Conditions of
institutional independence must take into account their operational context. This context
includes that the band taxation scheme was part of a nascent attempt to foster Aboriginal
self-government. This contextual consideration applies to assessing whether the bias issue was
premature and extends to the entire exercise of judicial discretion. Furthermore, before
concluding that the by-laws in question deprive the band taxation tribunals of institutional
independence, they should be interpreted in the context of the fullest knowledge of how they are
applied in practice. The reasonable person, before making a determination of whether or not he
or she would have a reasonable apprehension of bias, should have the benefit of knowing how
the tribunal operates in actual practice. Case law has tended to consider the institutional bias
question after the tribunal has been appointed and/or actually rendered judgment. It is not safe to
form final conclusions as to the workings of this institution on the wording of the by-laws alone.
Knowledge of the operational reality of these missing elements may very well provide a
significantly richer context for objective consideration of this institution and its relationships.
Per Lamer C.J. and Cory J.: Allegations of bias arising from the want of institutional
independence cannot be avoided by simply deferring to the exercise of discretion by the motions
judge. A lack of sufficient institutional independence in the bands' tribunals is a relevant factor
which must be taken into account in determining whether the respondents should be required to
pursue their jurisdictional challenge before those tribunals. Although the larger context of
Aboriginal self-government informs the determination of whether the statutory appeal
procedures established by the appellants constitute an adequate alternative remedy, this context is
not relevant to the question of whether the bands' tribunals give rise to a reasonable apprehension
of bias at an institutional level. Principles of natural justice apply to the bands' tribunals and are
not diluted by a federal policy of promoting Aboriginal self-government.
Judicial independence is a long standing principle of our constitutional law which is
also part of the rules of natural justice even in the absence of constitutional protection. Natural
justice requires that a party be heard by a tribunal that not only is independent but also appears to
be so. The principles for judicial independence accordingly apply in the case of an
administrative tribunal functioning as an adjudicative body. A strict application of the principles
for judicial independence is, however, not always warranted. Therefore, while administrative
tribunals are subject to these principles, the test for institutional independence must be applied in
light of the functions being performed by the particular tribunal at issue. The requisite level of
institutional independence (i.e., security of tenure, financial security and administrative control)
depends on the nature of the tribunal, the interests at stake, and other indices of independence
such as oaths of office. Cases dealing with the security of the person require a high level of
independence and warrant a stricter application of the applicable principles. Here, the bands'
administrative tribunals are adjudicating disputes about property taxes and a more flexible
approach is clearly warranted.
Even given a flexible application of the principles for judicial independence, a
reasonable and right-minded person, viewing the whole procedure in the assessment by-laws,
would have a reasonable apprehension that members of the appeal tribunals are not sufficiently

independent. Three factors lead to this conclusion: (1) the complete absence of financial
security for members of the tribunals; (2) the complete absence of security of tenure (in the case
of Siska), or ambiguous and therefore inadequate security of tenure (in the case of Matsqui); and
(3) the fact that the tribunals, whose members are appointed by the Band Chiefs and Councils,
are being asked to adjudicate a dispute pitting the interests of the bands against outside interests.
Effectively, the tribunal members must determine the interests of the very people, the bands, to
whom they owe their appointments. These three factors in combination lead to the conclusion
that the tribunals lack sufficient independence in this case; any one factor in isolation would not
necessarily lead to the same conclusion.
Although the allegations of an absence of institutional impartiality were premature,
the allegations surrounding institutional independence were not. The two concepts are quite
distinct. It is mere speculation to suggest that members of the tribunals will lack impartiality,
since it is impossible to know in advance of an actual hearing what these members think. In
assessing the institutional independence of the appeal tribunals, however, the inquiry focuses on
an objective assessment of the legal structure of the tribunals, of which the by-laws are
conclusive evidence. The by-laws merely afford the Band Chiefs and Councils the discretion to
provide institutional independence. It is inappropriate to leave issues of tribunal independence to
the discretion of those who appoint tribunals.
Ocean Port v. B.C. (Liquor Licensing Bd.) (SCC, 2001)
An initial police investigation and a subsequent investigation by a Senior Inspector with the
Liquor Control and Licensing Branch led to allegations that the respondent, which operates a
hotel and pub, had committed five infractions of the Liquor Control and Licensing Act and
Regulations. Following a hearing, another Senior Inspector with the Branch concluded that the
allegations had been substantiated and imposed a penalty that included a two-day suspension of
the respondents liquor licence. The respondent appealed to the Liquor Appeal Board by way of
a hearing de novo. The findings on four of the five allegations were upheld, and the penalty was
confirmed. Pursuant to s. 30(2)(a) of the Act, the chair and members of the Board serve at the
pleasure of the Lieutenant Governor in Council. In practice, members are appointed for a oneyear term and serve on a part-time basis. All members but the chair are paid on a per diem
basis. The chair establishes panels of one or three members to hear matters before the Board as
the chair considers advisable. The Court of Appeal concluded that members of the Board
lacked the necessary guarantees of independence required of administrative decision makers
imposing penalties and set aside the Boards decision.
Held: The appeal should be allowed and the matter remitted to the British Columbia Court of
Appeal to decide the issues which it did not address.
It is well established that, absent constitutional constraints, the degree of independence required
of a particular government decision maker or tribunal is determined by its enabling statute. The
statute must be construed as a whole to determine the degree of independence the legislature
intended. Confronted with silent or ambiguous legislation, courts generally infer that Parliament
or the legislature intended the tribunals process to comport with principles of natural justice.

However, like all principles of natural justice, the degree of independence required of tribunal
members may be ousted by express statutory language or necessary implication.
There is a fundamental distinction between administrative tribunals and courts. Superior courts,
by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess
objective guarantees of both individual and institutional independence. The same constitutional
imperative applies to the provincial courts. Administrative tribunals, by contrast, lack this
constitutional distinction from the executive. They are, in fact, created precisely for the purpose
of implementing government policy. Implementation of that policy may require them to make
quasi-judicial decisions. Given their primary policy-making function, however, it is properly the
role and responsibility of Parliament and the legislatures to determine the composition and
structure required by a tribunal to discharge the responsibilities bestowed upon it. While
tribunals may sometimes attract Charter requirements of independence, as a general rule they do
not.
The legislatures intention that Board members should serve at pleasure is unequivocal. As such,
it does not permit the argument that the statute is ambiguous and hence should be read as
imposing a higher degree of independence to meet the requirements of natural justice, if indeed a
higher standard is required. Where the intention of the legislature, as here, is unequivocal, there
is no room to import common law doctrines of independence. Nor is a constitutional guarantee
of independence implicated here. There is no basis upon which to extend the constitutional
guarantee of judicial independence that animated the Provincial Court Judges Reference to the
Liquor Appeal Board. The Board is not a court, nor does it approach the constitutional role of
the courts. It is first and foremost a licensing body. The suspension complained of was an
incident of the Boards licensing function. Licences are granted on condition of compliance with
the Act, and can be suspended for non-compliance. The exercise of power here at issue falls
squarely within the executive power of the provincial government.
This Courts conclusion affirming the independence of the Board makes it necessary to remit the
case to the Court of Appeal for consideration of the issues it expressly refrained from
addressing. Many of these issues directly relate to the validity of the decision at first instance.
Since the Court of Appeal will have the benefit of full argument on the nature of the initial
hearing and the relevant provisions of the Act, the Court also remits for its consideration the
issue of whether this hearing gave rise to a reasonable apprehension of bias and, if so, whether
this apprehension was cured by the de novo proceedings before the Board.
Consolidated-Bathurst and I.W.A. (SCC, 1990)
The Ontario Labour Relations Board ordinarily sits in panels of three when hearing applications
under the Labour Relations Act. A three-member panel decided that the appellant had failed to
bargain in good faith by not disclosing during negotiations for a collective agreement that it
planned to close a plant. In the course of deliberating over this decision, a meeting of the full
Board was held to discuss a draft of the reasons. No express statutory authority exists for this
practice.

The record did not indicate how many of the Board's 48 members attended the meeting in
question and whether labour and management were equally represented as contemplated by s.
102(9) of the Act. The members of the panel who heard the case, however, appear to have been
present. The meeting was conducted in accordance with the Board's longstanding and usual
practice. This practice required that discussion be limited to the policy implications of a draft
decision, that the facts be accepted as contained in the decision, that no vote or consensus be
taken, that no minutes be kept, and that no attendance be recorded.
Appellant applied for judicial review of the Board's decision on the ground that the rules of
natural justice had been breached. The application was granted by the Divisional Court but was
disallowed on appeal. At issue here was whether the two rules of natural justice had been
breached: (a) that the adjudicator be independent and unbiased, that he who decides must hear,
and (b) the audi alteram partem rule, the right to know the case to be met.
Held (Lamer and Sopinka JJ. dissenting): The appeal should be dismissed.
Per Wilson, La Forest, L'Heureux-Dub, Gonthier and McLachlin JJ.: Full board meetings are
a practical means of calling upon the accumulated experience of board members when making an
important policy decision and obviate the possibility of different panels inadvertently deciding
similar issues in a different way. The rules of natural justice should reconcile the characteristics
and exigencies of decision making by specialized tribunals with the procedural rights of the
parties.
The members of a panel who actually participate in the decision must have heard both the
evidence and the arguments presented by the parties. The presence of other Board members at
the full board meeting does not, however, amount to "participation" in the final decision.
Discussion with a person who has not heard the evidence does not necessarily vitiate the
resulting decision because this discussion might "influence" the decision maker.
Decision makers cannot be forced or induced to adopt positions they do not agree with by
means of some formalized consultation process. A discussion does not prevent a decision maker
from adjudicating in accordance with his own conscience and does not constitute an obstacle to
this freedom. The ultimate decision, whatever discussion may take place, is that of the decision
maker and he or she must assume full responsibility for that decision. Board members are not
empowered by the Act to impose one member's opinion on another and procedures which may in
effect compel or induce a panel member to decide against his or her own conscience or opinion
cannot be used to thwart this de jure situation.
The criteria for independence are not absence of influence but rather the freedom to decide
according to one's own conscience and opinions. The full board meeting was an important
element of a legitimate consultation process and not a participation in the decision of persons
who had not heard the parties. As practised by the Board, the holding of full board meetings
does not impinge on the ability of panel members to decide according to their opinions so as to
give rise to a reasonable apprehension of bias or lack of independence.

For the purpose of the application of the audi alteram partem rule, a distinction must be drawn
between discussions on factual matters and discussions on legal or policy issues.
Evidence cannot always be assessed in a final manner until the appropriate legal test has been
chosen by the panel and until all the members of the panel have evaluated the credibility of each
witness. It is, however, possible to discuss the policy issues arising from the body of evidence
filed before the panel even though this evidence may give rise to a wide variety of factual
conclusions. These discussions can be segregated from the factual decisions which will
determine the outcome of the case once a test is adopted by the panel. The purpose of the policy
discussions is not to determine which of the parties will eventually win the case but rather to
outline the various legal standards which may be adopted by the Board and discuss their relative
value.
Policy issues must be approached in a different manner because they have, by definition, an
impact which goes beyond the resolution of the dispute between the parties. While they are
adopted in a factual context, they are an expression of principle or standards akin to law. Since
these issues involve the consideration of statutes, past decisions and perceived social needs, the
impact of a policy decision by the Board is, to a certain extent, independent from the immediate
interests of the parties even though it has an effect on the outcome of the complaint.
On factual matters the parties must be given a fair opportunity for correcting or contradicting
any relevant statement prejudicial to their view. The rule with respect to legal or policy
arguments not raising issues of fact is, however, somewhat more lenient because the parties only
have the right to state their case adequately and to answer contrary arguments. This right does
not encompass the right to repeat arguments every time the panel convenes to discuss the case.
The safeguards attached by the Board to this consultation process are sufficient to allay any
fear of violations of the rules of natural justice provided the parties are advised of any new
evidence or grounds and are given an opportunity to respond. The balance so achieved between
the rights of the parties and the institutional pressures the Board faces are consistent with the
nature and purpose of the rules of natural justice. In the instant case, the policy decided upon
was the very subject of the hearing when the parties had full opportunity to deal with the matter
and present diverging proposals which they did.
Per Lamer and Sopinka JJ. (dissenting): The introduction of policy considerations in the
decision-making process by members of the Board who were not present at the hearing and their
application by members who were present but who heard no submissions from the parties in that
respect violates the rationale underlying the principles of natural justice.
The final decision was formally that of the three-member panel. The inference that the full
Board meeting might have affected the outcome, however, exists and is fed by two difficulties.
Firstly, uniformity can only be achieved if some decisions of the individual panels are brought
into line with others by the uniform application of policy. Secondly, in matters affecting the
integrity of the decision-making process, an appearance of injustice is sufficient to taint the
decision.

The Board is required by statute to hold a hearing and to give the parties a full opportunity to
present evidence and submissions. It is also entitled to apply policy. The role of policy in the
decision-making function of boards must be reappraised in light of the evolution of the law
relating to the classification of tribunals and the application of the rules of natural justice and
fairness to those boards. The content of the rules of natural justice is no longer dictated by
classification as judicial, quasi-judicial or executive, but by reference to the circumstances of the
case, the governing statutory provisions and the nature of the matters to be determined. It is no
longer appropriate to conclude that failure to disclose policy to be applied by a tribunal is not a
denial of natural justice without examining all the circumstances under which the tribunal
operates.
The full Board hearing deprived the appellant of a full opportunity to present evidence and
submissions and accordingly constituted a denial of natural justice. It could not be determined
with certainty from the record that a policy which was developed at the full Board hearing and
was not disclosed to the parties was a factor in the decision. That this might very well have
happened, however, was fatal to the Board's decision.
The goal of uniformity in the decisions of individual boards, while laudable, cannot be
achieved at the expense of the rules of natural justice. The legislature, if it so chooses, can
authorize the full Board procedure.
The conclusion that no substantial wrong occurred could not be made. Prejudice arising
because of a technical breach of the rules of natural justice must be established by the party
making the allegation. The appellant, however, could hardly be expected to establish prejudice
when it was not privy to the discussion before the full Board and when there is no evidence as to
what in fact was discussed. The gravity of the breach of natural justice could not be assessed in
the absence of such evidence.
The full Board procedure was not saved by s. 102(13) of the Labour Relations Act which
granted the Board the power to determine its own practice and procedure subject to the
qualification that full opportunity be granted the parties to any proceedings to present their
evidence and to make their submissions. The appellant was not given a full opportunity to
present evidence and make submissions. The Board's practice must give way when at a variance
with the rules of natural justice.
Tremblay v. Quebec (C.a.s.), (SCC 1992)
Following the refusal of the Ministre de la Main-d'{oe}uvre et de la Scurit du revenu of
Quebec to reimburse the cost of certain dressings and bandages, the respondent, who was
receiving social aid, appealed this decision to the Commission des affaires sociales. The issue
was whether the dressings and bandages came within the definition of "medical equipment"
within the meaning of s. 10.04 of the Regulation on Social Aid. The appeal was heard by two
commissioners and the parties argued in writing. At the close of the hearing, a draft decision
favourable to the respondent was signed by the commissioners and sent to the Commission's
legal counsel for verification and consultation in accordance with established practice at the

Commission. As the legal counsel was on vacation, it was the president of the Commission who
reviewed the draft. He then sent the two commissioners a memorandum in which he explained
his contrary position. Further to this memorandum, and at the request of a commissioner, the
point of law raised was submitted to the "consensus table" machinery of the Commission. At
that meeting, a majority of members present expressed their disagreement with the position
adopted in the draft decision and, shortly afterwards, one of the commissioners changed her mind
and wrote an opinion unfavourable to the respondent. The commissioners were then divided on
the question and the matter was submitted to the president of the Commission pursuant to s. 10
of the Act respecting the Commission des affaires sociales. The president decided the matter in
the way he had already indicated to the commissioners in his memorandum. The respondent's
appeal was accordingly dismissed. Alleging a breach of the rules of natural justice, the
respondent challenged the Commission's decision by an action in nullity and asked that the "first
draft decision" be declared the Commission's true decision. The Superior Court concluded that
the Commission's decision contravened the rules of natural justice and allowed the action, but it
refused to regard the first draft of the decision as the Commission's true decision. The Court of
Appeal, in a majority decision, upheld the trial judgment.
Held: The principal appeal and the incidental appeal should be dismissed.
By the very nature of the control exercised over their decisions, administrative
tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Secrecy
remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for
believing that the process followed did not comply with the rules of natural justice. In this case,
the objections by the Commission to the questions raised by the respondent concerning the
process for dealing with draft decisions within the Commission should be dismissed. These
questions did not touch on matters of substance or the decision makers' thinking on such
matters. They were directed instead at the formal process established by the Commission to
ensure consistency in its decisions. The questions were concerned first with the institutional
setting in which the decision was made and how it functioned, and second with its actual or
apparent influence on the intellectual freedom of the decision makers.
The consultation machinery created by the Commission is not consistent with the
rules of natural justice. While a consultation process by plenary meeting designed to promote
adjudicative coherence may prove acceptable for an administrative tribunal, such a process must
not however impede the ability or freedom of the members of the tribunal to decide according to
their consciences and opinions, or create an appearance of bias in the minds of litigants. Here,
the evidence depicts a system in which constraint seems to have outweighed influence. The
"consensus tables" held by the Commission, although optional in theory, are in practice
compulsory when the legal counsel determines that the proposed decision is contrary to previous
decisions. Moreover, the rules for holding plenary meetings of the Commission disclose a
number of points which taken together could create an appearance of bias. In particular, a
plenary meeting may be requested not only by the commissioners responsible for making the
decision but also by the president of the Commission. The mere fact that the president can of his
own motion refer a matter for plenary discussion may in itself be a constraint on decision
makers. Since the statute clearly provides that it is the decision makers who must decide a
matter, they must retain the right to initiate consultation; if they do not wish to consult, they

must be free not to do so. Compulsory consultation creates an appearance of a lack of

independence, if not actual constraint. In cases of new subject-matter, compulsory consultation
circumvents the will of the legislature by seeking to establish a prior consensus by persons not
responsible for deciding the case. There are other facts which support this conclusion of an
apparent lack of independence. Plenary meetings of the Commission are held so as to arrive at a
consensus: the members present vote by a show of hands, attendance is taken and minutes are
kept, These mechanisms may exert undue pressure on decision makers and are not to be
recommended. The Commission's decision, as a product of this system of internal consultation,
thus seems to have been made in breach of the rules of natural justice. Certain aspects of the
system established by the Commission create an appearance of "systemic pressure".
Even if the formal consultation machinery had been in keeping with the rules of
natural justice, the fact that the president of the Commission expressed his opinion to the
commissioners responsible for making the decision, inviting them to reconsider it, and then
became a decision maker is hardly consistent with these rules. The Act respecting the
Commission des affaires sociales gives the president the power to settle disputes but, in view of
the active part he took in the discussion, he should have delegated this task to one of his
vice-presidents, pursuant to s. 10 of the Act. The active part played by the president in this
matter is likely to create a reasonable apprehension of bias in an informed observer. Although
the president had not heard the parties when he finally decided the matter, however, the
procedure used in this case does not infringe the audi alteram partem rule. The question on
which the Commission had to rule was a point of law and the parties pleaded in writing. There is
nothing to indicate that new arguments of law were raised at the "consensus table" or that the
president considered new points at the decision-making stage. Since he in fact decided on the
basis of the written file as prepared by the commissioners present at the hearing, there was no
breach of the audi alteram partem rule.
The first "decision" rendered by the commissioners was in their minds only a draft, a
provisional opinion, and cannot be regarded as the Commission's true decision. The intent of the
decision makers must be analyzed in terms of the institutionalized consultation process that
existed at the time the decision was made, even though that process now proves to have
contravened the rules of natural justice. It is therefore the second "decision" which is the
Commission's true decision.
Roncarelli v. Duplessis, (SCC, 1959)
The plaintiff, the proprietor of a restaurant in Montreal and the holder of a licence to sell
intoxicating liquor, sued the defendant personally for damages arising out of the cancellation of
his licence by the Quebec Liquor Commission. He alleged that the licence had been arbitrarily
cancelled at the instigation of the defendant who, without legal powers in the matter, had given
orders to the Commission to cancel it before its expiration. This was done, it was alleged, to
punish the plaintiff, a member of the Witnesses of Jehovah, because he had acted as bailsman for
a large number of members of his sect charged with the violation of municipal by-laws in
connection with the distribution of literature. The trial judge gave judgment for the plaintiff for
part of the damages claimed. The defendant appealed and the plaintiff, seeking an increase in the

amount of damages, cross-appealed. The Court of Appeal dismissed the action and the crossappeal.
Held (Taschereau, Cartwright and Fauteux JJ. dissenting) : The action should be maintained and
the amount awarded at trial should be increased by $25,000. By wrongfully and without legal
justification causing the cancellation of the permit, the defendant became liable for damages
under art. 1053 of the Civil Code.
Per Kerwin C.J.: The trial judge correctly decided that the defendant ordered the Commission to
cancel the licence, and no satisfactory reason has been advanced for the Court of Appeal setting
aside that finding of fact.
Per Kerwin C.J. and Locke and Martland JJ.: There was ample evidence to sustain the finding of
the trial judge that the cancellation of the permit was the result of an order given by the
defendant to the manager of the Commission. There was, therefore, a relationship of cause and
effect between the defendant's acts and the cancellation of the permit.
The defendant was not acting in the exercise of any of his official powers. There was no
authority in the Attorney-General's Department Act, the Executive Power Act, or the Alcoholic
Liquor Act enabling the defendant to direct the cancellation of a permit under the Alcoholic
Liquor Act. The intent and purpose of that Act placed complete control over the liquor traffic in
the hands of an independent commission.
Cancellation of a permit by the Commission, at the request or upon the direction of a third party,
as was done in this case, was not a proper and valid exercise of the powers conferred upon the
Commission by s. 35 of the Act.
The defendant was not entitled to the protection provided by art. 88 of the Code of Civil
Procedure since what he did was not "done by him in the exercise of his functions". To interfere
with the administration of the Commission by causing the cancellation of a liquor permit was
entirely outside his legal functions. It involved the exercise of powers which in law he did not
possess at all. His position was not altered by the fact that he thought it was his right and duty to
act as he did.
Per Rand J.: To deny or revoke a permit because a citizen exercises an unchallangeable right
totally irrelevant to the sale of liquor in a restaurant is beyond the scope of the discretion
conferred upon the Commission by the Alcoholic Liquor Act. What was done here was not
competent to the Commission and a fortiori to the government or the defendant. The act of the
defendant, through the instrumentality of the Commission, brought about a breach of an implied
public statutory duty toward the plaintiff. There was no immunity in the defendant from an
action for damages. He was under no duty in relation to the plaintiff and his act was an intrusion
upon the functions of a statutory body. His liability was, there-fore, engaged. There can be no
question of good faith when an act is done with an improper intent and for a purpose alien to the
very statute under which the act is purported to be done. There was no need for giving a notice of
action as required by art. 88 of the Code of Civil Procedure, as the act done by the defendant was
quite beyond the scope of any function or duty committed to him so far so that it was one done

exclusively in a private capacity however much, in fact, the influence of public office and power
may have carried over into it.
Per Abbott J.: The cancellation of the licence was made solely because of the plaintiff's
association with the Witnesses of Jehovah and with the object and purpose of preventing him
from continuing to furnish bail for members of that sect. This cancellation was made with the
express authorization and upon the order of the defendant. In purporting to authorize and instruct
the Commission to cancel the licence the defendant was acting, as he was bound to know,
without any legal authority whatsoever. A public officer is responsible for acts done by him
without legal justification. The defendant was not entitled to avail himself of the exceptional
provision of art. 88 of the Code of Civil Procedure since the act complained of was not "done by
him in the exercise of his functions" but was an act done when he had gone outside his functions
to perform it. Before a public officer can be held to be acting "in the exercise of his functions"
within the meaning of art. 88, it must be established that at the time he performed the act
complained of such public officer had reasonable ground for believing that such act was within
his legal authority to perform.
Per Taschereau J., dissenting: The action cannot succeed because -the plaintiff did not give the
notice required by art. 88 of the Code of Civil Procedure to the defendant who was a public
officer performing his functions. The failure to fulfil this condition precedent was a total bar to
the claim. That failure may be raised by exception to the form or in the written plea to the action,
and the words "no judgment may be rendered" indicate that the Court may raise the point propio
motu. Even if what was said by the defendant affectedthe decision taken by the Commission, the
defendant remained, nevertheless, a public officer acting in the performance of his duties. He
was surely a public officer, and it is clear that he did not act in his personal quality. It was as
legal adviser of the Commission and also as a public officer entrusted with the task of preventing
disorders and as protector of the peace in the province, that he was consulted. It was the
Attorney-General, acting in the performance of his functions, who was required to give his
directives to a govern-mental branch. It is a fallacious principle to hold that an error, committed
by a public officer in doing an act connected with the object of his functions, strips that act of its
official character and that its author must then be considered as having acted outside the scope of
his duties.
Per Cartwright J., dissenting: The loss suffered by the plaintiff was damnum sine injuria.
Whether the defendant directed or merely approved the cancellation of the licence, he cannot be
answerable in damages since the act of the Commission in cancelling the licence was not an
actionable wrong. The Courts below have found, on ample evidence, that the defendant and the
manager of the Commission acted throughout in the honest belief that they were fulfilling their
duty to the province. On the true construction of the Alcoholic Liquor Act, the Legislature, except
in certain specified circumstances which are not present in the case at bar, has not laid down any
rules as to the grounds on which the Commission may decide to cancel a permit; that decision is
committed to the unfettered discretion of the Commission and its function in making the decision
is administrative and not judicial or quasi-judicial. Consequently, the Commission was not bound
to give the plaintiff an opportunity to be heard and the Court cannot be called upon to determine
whether there existed sufficient grounds for its decision. Even if the function of the Commission

was quasi-judicial and its order should be set aside for failure to hear the plaintiff, it is doubtful
whether any action for damages would lie.
Per Fauteux J., dissenting : The right to exercise the discretion with respect to the cancellation of
the permit, which under the Alcoholic Liquor Act was exclusively that of the Commission, was
abdicated by it in favour of the defendant when he made the decision executed by the
Commission. The cancellation being illegal, imputable to the defendant, and damageable for the
plaintiff, the latter was entitled to succeed on an action under art. 1053 of the Civil Code.
As the notice required by art. 88 of the Code of Civil Procedure was not given, the action,
however, could not be maintained. The failure to give notice, when it should be given, imports
nullity and limits the very jurisdiction of the Court. In the present case, the defendant was
entitled to the notice since the illegality reproached was committed "in the exercise of his
functions". The meaning of this expression in art. 88 was not subject to the limitations attending
expressions more or less identical appearing in art. 1054 of the Civil Code. The latter article
deals with responsibility whereas art. 88 deals with procedure. Article 88 has its source in s. 8 of
An Act for the Protection of Justices of the Peace, Cons. Stat. L.C., c. 101, which provided that
the officer "shall be entitled" to the protection of the statute although "he has exceeded his
powers or jurisdiction, and has acted clearly contrary to law". That section peremptorily establishes that, in pari materia, a public officer was not considered as having ceased to act within the
exercise of his functions by the sole fact that the act committed by him might constitute an abuse
of power or excess of jurisdiction, or even a violation of the law. An illegality is assumed under
art. 88. The jurisprudence of the province, which has been settled for many years, is to the effect
that the incidence of good or bad faith has no bearing on the right to the notice.
The illegality committed by the defendant did not amount to an offence known under the penal
law or a delict under art. 1053 of the Civil Code. He did not use his functions to commit this
illegality. He did not commit it on the occasion of his functions, but committed it because ,of his
functions. His good faith has not been doubted, and on this fact there was a concurrent finding in
the Courts below.
Ainsley Financial Corp. v. Ontario (Ont. C.A., 1994)
NO HEADNOTE
Thamotharem v. Canada, (FCA, 2007)
This was an appeal from a Federal Court decision granting an application for judicial review to
set aside a decision of the Refugee Protection Division (RPD) dismissing the respondents claim
for refugee protection. The respondent cross-appealed the finding that Guideline 7 of the
Guidelines Issued by the Chairperson Pursuant to Section 159(1)(h) of the Immigration and
Refugee Protection Act (IRPA) is not invalid because it deprives refugee claimants of the right to
a fair hearing. Guideline 7 was issued in 2003 by the Chairperson of the Board pursuant to the
statutory power to issue guidelines . . . to assist members in carrying out their duties as
outlined in the Immigration and Refugee Protection Act (IRPA), paragraph 159(1)(h). The IRPA
also empowers the Chairperson to make rules for each of the three Divisions of Board but these

rules must be approved by the Governor in Council and laid before Parliament. The key
paragraphs of Guideline 7 provide that the standard practice in a refugee protection claim will be
for the Refugee Protection Officer (RPO) to start questioning the claimant (paragraph 19),
although paragraph 23 states that the RPD member hearing the claim may, in exceptional
circumstances, vary the order of questioning. Guideline 7 was challenged on the grounds that (1)
it deprives refugee claimants of the right to a fair hearing by denying them the opportunity to be
questioned first by their own counsel; and (2) even if does not breach the duty of fairness, the
Chairperson should have introduced the new standard order of questioning as a rule of procedure
under the IRPA, paragraph 161(1)(a). While the Federal Court held that Guideline 7 is an
unlawful fetter on the exercise of discretion by individual RPD members to determine the order
of questioning at a hearing in the absence of a provision in either the IRPA or the Refugee
Protection Division Rules (Rules), it rejected the respondents argument that it deprives refugee
claimants of the right to a fair hearing and distorts the judicial role of the member hearing the
claim. It remitted the matter for re-determination on the basis that Guideline 7 is an invalid fetter
on the RPDs discretion in the conduct of the hearing.
The respondent is a Sri Lankan Tamil who claimed refugee protection in Canada but his claim
was rejected. Before the issue of Guideline 7, which was applied during the respondents hearing
despite the respondents objection, neither the IRPA nor the Rules addressed the order of
questioning at a hearing. The order of questioning was within the individual members discretion
and practice thereon was not uniform across Canada.
The main issues in the present case were: (1) whether Guideline 7 prescribes a hearing procedure
that is in breach of claimants right to procedural fairness; (2) whether Guideline 7 is
unauthorized by paragraph 159(1)(h) because it is a fetter on RPD members exercise of
discretion in the conduct of hearings; and (3) whether Guideline 7 is invalid because it is a rule
of procedure and should therefore have been issued under IRPA, paragraph 161(1)(a).
Held, the appeal should be allowed, and the cross-appeal should be dismissed.
Per Evans J.A. (Dcary J.A. concurring): (1) At a general level, the seriousness of the rights
involved in the determination of a refugee claim, as well as the generally judicial character of
the oral hearings held by the RPD, militate in favour of affording claimants a high degree of
procedural protection. However, its details must also be tailored to fit the inquisitorial and
relatively informal nature of the hearing established by Parliament as well as the RPDs high
volume case load. Although a relatively inquisitorial procedural form may reduce the degree of
control over the process often exercisable by counsel in adversarial proceedings, the fair
adjudication of individual rights is perfectly compatible with an inquisitorial process where the
order of questioning is not as obvious as it generally is in an adversarial hearing. Furthermore,
the fact that members question the claimant first when there is no RPO present does not distort
the inquisitorial process established by IRPA and would not give rise to a reasonable
apprehension of bias on the part of the person who is informed of the facts and has thought the
matter through. Guideline 7 does not curtail counsels participation in the hearing since counsel
is present throughout and may conduct an examination of the client to ensure that the claimants
testimony is before the decision maker. The right to be represented by counsel does not include
the right of counsel to determine the order of questioning or any other aspect of the procedure to

be followed at the hearing. Although fairness may require a departure from the standard order of
questioning in some circumstances, the procedure prescribed by Guideline 7 does not, on its
face, breach the Boards duty of fairness.
(2) Effective decision making by administrative agencies often involves striking a balance
between general rules and the exercise of ad hoc discretion. Through the use of soft law
(policy statements, guidelines, manuals and handbooks), an agency can communicate
prospectively its thinking on an issue to agency members and staff as well as to the public at
large and to the agencys stakeholders in particular. An administrative agency does not require
an express grant of statutory authority in order to issue guidelines and policies to structure the
exercise of its discretion or the interpretation of its enabling legislation. Although not legally
binding on a decision maker, guidelines may validly influence a decision makers conduct. The
use of guidelines and other soft law techniques to achieve an acceptable level of consistency in
administrative decisions is particularly important for tribunals exercising discretion, whether on
procedural, evidential or substantive issues, in the performance of adjudicative functions. This is
especially true for large tribunals, such as the Immigration and Refugee Board (IRB).
Despite the express statutory authority of the Chairperson to issue guidelines under IRPA,
paragraph 159(1)(h), they do not have the same legal effects that statutory rules can have. In
particular, guidelines cannot lay down a mandatory rule from which members have no
meaningful degree of discretion to deviate regardless of the facts of the particular case before
them. The word guideline itself normally suggests some operating principle or general norm,
which does not necessarily determine the result of every dispute.
Since the language of Guideline 7 expressly permits members to depart from the standard order
of questioning in exceptional circumstances, the Court should be slow to conclude that members
will regard themselves as bound to follow the standard order in the absence of clear evidence to
the contrary. The Federal Court correctly concluded that the language of Guideline 7 is more
than a recommended but optional process. The fact that a guideline is intended to establish
how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as
it does not preclude the possibility that the decision maker may deviate from normal practice in
the light of particular facts. While RPD members must perform their adjudicative functions
without improper influence from others, case law also recognizes that administrative agencies
must be free to devise processes for ensuring an acceptable level of consistency and quality in
their decisions. Evidence that the IRB monitors members deviations from the standard order
of questioning does not create the kind of coercive environment that would make Guideline 7 an
improper fetter on members exercise of their decision-making powers. Nor did the evidence
establish that a reasonable person would think that RPD members independence was unduly
constrained by Guideline 7.
(3) On its face, the power granted by IRPA, paragraph 159(1)(h) to the Chairperson to issue
guidelines in writing to assist members in carrying out their duties is broad enough to include a
guideline issued in respect of the exercise of members discretion in procedural, evidential or
substantive matters. Structuring members discretion over the order of questioning is within the
subject-matter of the guidelines contemplated by section 159. The exercise of the Chairpersons
power to issue guidelines is not made expressly subject to paragraph 161(1)(a), although a
guideline issued under paragraph 159(1)(h) that is inconsistent with a formal rule of procedure

issued under paragraph 161(1)(a) will be invalid. Thus, on procedural issues, the Chairpersons
guideline-issuing and rule-making powers overlap. Provided that it does not unlawfully fetter
members exercise of their adjudicative discretion, that the subject of a guideline could have been
enacted as a rule of procedure issued under IRPA, paragraph 161(1)(a) will not normally
invalidate it. It was not unreasonable for the Chairperson to choose to implement the standard
order of questioning through the guideline, rather than through a formal rule of procedure.
Per Sharlow (concurring): The two powers the IRPA gives the Chairperson to issue guidelines in
writing to assist members in carrying out their duties (paragraph 159(1)(h)) and to make rules
respecting the activities, practice and procedure of the Board, subject to the Governor in
Councils approval (paragraph 161(1)(a)) differ substantively and functionally and are not
interchangeable at the will of the Chairperson. The Chairpersons determination that the standard
practice in refugee hearings, barring exceptional circumstances, should be for the RPO or the
member to start questioning the refugee claimant should have been implemented by means of a
rule rather than a guideline. But the standard procedure outlined in Guideline 7 is not in itself
procedurally unfair and Guideline 7 does not unlawfully fetter the discretion of members.
Despite Guideline 7, each member continues to have the unfettered discretion to adopt any order
of procedure required by the exigencies of each claim to which the member is assigned.
CUPE v. New Brunswick (Liquor Distribution Branch) (SCC, 1979)
During the course of a lawful strike the appellant union complained that the respondent, the
employer of the union members, was replacing striking employees with management personnel
contrary to s. 102(3)(a) of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P25. In
fact management personnel had been used to do work normally done by union personnel. The
issue centred on s. 102(3) of the Act in particular subs. (a) which provides that "the employer
shall not replace the striking employees or fill their position with any other employee." The
Public Service Labour Relations Board recognised the ambiguities of s. 102(3) but rejected the
employer's argument that the only intent of the section was to ensure that the jobs remained open
for the employees after the strike was over. The Board's view was that when the Legislature
granted the right to strike to public employees it intended through s. 102(3) to restrict the
possibility of picketline violence by prohibiting both strike breaking and picketing; an
intention which would be frustrated if the employer's argument were accepted. The Appeal
Division allowed an application by the employer for certiorari and quashed the decision of the
Board, holding not only that s. 102(3) did not prevent management from performing the
functions of striking employees but also considering the interpretation of s. 102(3) as a
preliminary or collateral matter wrongly decided by the Board which thereby assumed a
jurisdiction that it did not have.
Held: The appeal should be allowed.
The language of "preliminary or collateral matter" does not assist in the inquiry into the Board's
jurisdiction. The Board acquires its jurisdiction to consider a complaint of violation of the Act
under s. 19(1)(a). The Board was asked by the parties to determine the complaints in question
and neither of them raised the jurisdictional question, the employer in its reply only contending
that it had not in any way violated the provision (s. 102(3)(a)). One cannot therefore suggest that

the Board did not have jurisdiction in the narrow sense to enter upon an inquiry. The cases cited
by the Appeal Division do not have any application to this case. The privative clause in s. 101
protects the decisions of the Board made within jurisdiction and that section is clear statutory
direction that public sector labour matters be promptly and finally settled by the Board. This
would dispose of the appeal were it not for the contention that the Board's interpretation was
'patently unreasonable'. Where as here the ambiguity of the section is obvious there is no one
interpretation which can be said to be right. The interpretation by the Board cannot be said to be
"patently unreasonable". While it may appear so at first glance if one draws too heavily on
private sector experience upon a careful reading of the Act and the decisions below, the Board's
interpretation is at least as reasonable as the alternative interpretations suggested in the Appeal
Division.
Crevier v. Quebec (SCC, 1981)
The appellant obtained two writs of evocation from a judge of the Superior Court of Quebec
from two decisions of the Professions Tribunal quashing a decision of a Discipline Committee of
a professional corporation on the ground that that body had acted beyond its authority. The
Superior Court held that the wide powers conferred upon the Professions Tribunalpowers
encompassing review of law or fact and jurisdictionoffended s. 96 of the B.N.A. Act because
the question whether a body has exceeded its jurisdiction fell within the superintending and
reforming power belonging solely to a superior court whose members are appointed by the
Governor General in Council. That decision was reversed by a majority of the Quebec Court of
Appeal. Hence the appeal to this Court.
Held: The appeal should be allowed.
The Professions Tribunal is given no function other than that of a general tribunal of appeal in
respect of all professions covered by the Professional Code and it was, therefore, impossible to
see its final appellate jurisdiction as part of an institutional arrangement by way of a regulatory
scheme for governance of the various professions.
Where a provincial legislature purports to insulate one of its statutory tribunals from any curial
review of its adjudicative functions, and where that insulation encompassing jurisdiction, the
legislation must be struck down as unconstitutional because it constitutes, in effect, a s. 96 court.
It is unquestioned that privative clauses, when properly framed, may effectively oust judicial
review on questions of law and on other issues not touching jurisdiction. However, given that s.
96 is in the British North America Act and that it would make a mockery of it to treat it in nonfunctional formal terms as a mere appointing power, there is nothing that is more the hallmark of
a superior court than the vesting of power in a provincial statutory tribunal to determine the
limits of its jurisdiction without appeal or other review. Consequently, a provincially-constituted
statutory tribunal could not constitutionally be immunized from review of decisions on questions
of jurisdiction.
The present case was no different in principle from the Farrah case, [1978] 2 S.C.R. 638, when
regard is had to ss. 175, 194 and 195 of the Professional Code. In both cases there was a
purported exclusion of the reviewing authority of any court, whether by appeal or by evocation.

Southam v. Director of Investigations (SCC, 1997)

Vancouvers two daily newspapers (owned by Southam Inc.) were less successful, when
compared with daily newspapers in other regions of Canada, relative to the many smaller
community newspapers circulating in their distribution area. The community newspapers
differed from the dailies in that they served a smaller area, were distributed free of charge, and
were printed from one to three times a week. In 1989, Southam Inc. began to acquire community
and specialized newspapers in the area, and one year later had obtained a controlling interest in
13 community newspapers (including the two strongest ones, the North Shore News and the
Vancouver Courier), a real estate advertising publication, three distribution services and two
printing concerns. Southam Inc. also established a local supplement to one of its dailies but
eventually discontinued it.
The respondent applied for an order requiring Southam to divest itself of the North Shore News,
the Vancouver Courier, and the Real Estate Weekly, alleging that the concentration of these
properties in the hands of one publisher was likely to lessen competition substantially in the
retail print advertising and real estate print advertising markets in the Lower Mainland. The
Competition Tribunal found a substantial lessening in competition in the real estate print
advertising market in the North Shore. It ordered Southam to divest itself, at its option, of either
the North Shore News or the Real Estate Weekly. It rejected Southams proposal that it sell the
real estate section of the North Shore News. The Director of Investigation and Research appealed
the Tribunals decision on the merits and Southam appealed the Tribunals decision on the
remedy. The Federal Court of Appeal allowed the first appeal and dismissed the second.
This appeal raises two issues. The first is whether the Federal Court of Appeal erred in
concluding that it owed no deference to the Tribunals finding about the dimensions of the
relevant market and in subsequently substituting for that finding one of its own. The second is
whether the Federal Court of Appeal erred in refusing to set aside the Tribunals remedial order.
Held: The appeal on the merits should be allowed; the appeal on the remedy should be
dismissed.
Merits
The standard of review is a function of many factors and may fall between correctness, at the
more exacting end of the spectrum, and patently unreasonable, at the more deferential end. In the
absence of a privative clause, the reviewing court may review decisions taken by the tribunal
even within its own jurisdiction. Accordingly, the task for the reviewing court in a statutory
appeal is more akin to appellate review than to judicial review. Nevertheless, the reviewing
court must look to several factors to determine what limits it should observe in exercising its
statutorily mandated appellate function. Among the factors to be considered are the nature of
the problem before the tribunal, the applicable law properly interpreted in the light of its purpose
and the area of the tribunals expertise.

The problem before the Tribunal in this case was a problem of mixed law and fact. Questions of
law are questions about what the correct legal test is; questions of fact are questions about what
actually took place between the parties; and questions of mixed law and fact are questions about
whether the facts satisfy the legal tests. The distinction between questions of law and questions
of mixed law and fact will sometimes be difficult to make. In theoretical terms, the rule is that as
the level of generality of the challenged proposition approaches complete particularity, the matter
approaches unqualified application of law and draws away from the forging of new law, and
hence draws nigh to being an unqualified question of mixed law and fact.
The Tribunal did not fail to consider relevant items of evidence and so did not err in law by
failing to consider them. To suggest that it erred in law by failing to accord adequate weight to
certain factors is inimical to the very notion of a balancing test, which is a kind of legal rule
whose application should be subtle and flexible, but not mechanical. As a matter of law, the
Tribunal should consider each factor, but the according of weight to the factors should be left, at
least initially, to the Tribunal. The Tribunal forged no new legal principle and so any error it
might have made can only have been one of mixed law and fact. This suggests that some
measure of deference accordingly is owed to the Tribunals decision. Appellate courts should be
reluctant to venture into a re-examination of the conclusions of the Tribunal on questions of
mixed law and fact.
The absence of a privative clause counsels a less deferential posture for appellate courts than
would be appropriate if a privative clause were present. The Tribunal, however, has been
recognized as being especially well-suited to overseeing a complex statutory scheme whose
objectives are peculiarly economic. Because an appellate court is likely to encounter difficulties
in understanding the economic and commercial ramifications of the Tribunals decisions and
consequently to be less able to secure the fulfilment of the purpose of the Competition Act , the
purpose of the Act is better served by appellate deference to the Tribunals decisions.
Expertise, which in this case overlaps with the purpose of the statute that the Tribunal
administers, is the most important of the factors that a court must consider in settling on a
standard of review. The Tribunals expertise lies in economics and in commerce, and these are
matters concerning which the members of the Tribunal are likely to be far more knowledgeable
than the typical judge will be. The particular dispute in this case is one that falls squarely within
the area of the Tribunals expertise.
A standard more deferential than correctness but less deferential than not patently
unreasonable is required. Because several considerations, including particularly the expertise of
the Tribunal, counsel deference while others suggest a more exacting form of review, the proper
standard of review falls somewhere between the ends of the spectrum.
The need for a third standard of review is especially clear in cases, like this one, in which appeal
from a tribunals decision lies by statutory right. The presence of the statutory right of appeal

obviates the need to find a jurisdictional error. Because the standard of patent unreasonableness
is principally a test for determining whether a tribunal has exceeded its jurisdiction, it will rarely
be the appropriate standard of review in statutory appeals. However, because tribunals typically
enjoy some expertise and deal with problems of a difficult and intricate nature, a standard more
deferential than correctness is needed. This third standard should be whether the decision of the
Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of
review, which requires courts to consider whether a tribunals decision is patently unreasonable.
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand
up to a somewhat probing examination. The difference between unreasonable and patently
unreasonable lies in the immediacy or obviousness of the defect. If the defect is apparent on the
face of the tribunals reasons, then the tribunals decision is patently unreasonable. But if it takes
some significant searching or testing to find the defect, then the decision is unreasonable but not
patently unreasonable.
The clearly wrong test is close to the standard of reasonableness simpliciter. Many things are
wrong that are not unreasonable, but when clearly is added to wrong, the meaning is brought
much nearer to that of unreasonable. Consequently, the clearly wrong test represents a striking
out from the correctness test in the direction of deference. But the clearly wrong test does not go
so far as the standard of patent unreasonableness. The clearly wrong test, because of its
familiarity to Canadian judges, may serve as a guide in applying the standard of reasonableness
simpliciter.
In the final result, the standard of reasonableness simply instructs reviewing courts to accord
considerable weight to the views of tribunals about matters with respect to which they have
significant expertise. While it is convenient to put the matter in terms of a standard of review, at
bottom the issue is the weight that should be accorded to expert opinions.
The Tribunal did not act unreasonably when it decided that Southams daily newspapers and
community newspapers are in different product markets.
That the Tribunal discounted evidence of functional interchangeability between the dailies and
the community newspapers was reasonable on the facts and was not without foundation or
logical coherence. It is reasonable, if only reasonable, to suppose that advertisers are sufficiently
discerning about the media they employ that they are unlikely to respond to changes in the
relative prices of the two kinds of newspapers by taking their business from the one to the other.
The Tribunal also discounted evidence that Southam regarded the community newspapers as
competitors for its dailies. This discounting is perhaps unusual given that Southams expert
identified this competition with community newspapers as the source of the dailies difficulties.
The Tribunals findings, however, were not unreasonable and they did not need to be correct.
Judicial restraint is needed if a cohesive, rational and sensible system of judicial review is to be
fashioned.
Remedy

Because the Competition Act addresses the problem of substantial lessening of competition, the
appropriate remedy is to restore competition to the point at which it can no longer be said to be
substantially less than it was before the merger. The test that the Tribunal has applied in consent
cases should be applied in all cases.
The Tribunals choice of remedy is a matter of mixed law and fact and the standard of review is
one of reasonableness.
Southams proposed remedy of selling the real estate section of the North Shore News fails
because it would not likely be effective in eliminating the substantial lessening of competition.
This decision was not unreasonable and should be allowed to stand. The remedy chosen by the
Tribunal is not punitive, because the Tribunal found that it was the only effective remedy. If the
choice is between a remedy that goes farther than is strictly necessary to restore competition to
an acceptable level and a remedy that does not go far enough even to reach the acceptable level,
then surely the former option must be preferred. The Tribunal did not wrongly require the
appellants to demonstrate the effectiveness of their proposed remedy; the person who asserts
should prove.
CUPE v. Ontario (Minister of Labour) (SCC, 2003)
Since 1965, Ontarios hospitals, nursing homes and their employees have been required to
resolve disputes over collective agreements by compulsory arbitration under the Hospital
Labour Disputes Arbitration Act (HLDAA). If the parties cannot agree on a mutually
acceptable arbitrator, a panel of three members is struck, two designated by the parties and the
third chosen by the two designates or, if they fail to agree, appointed by the Minister of Labour.
Amendments to the Labour Relations Act in 1979 facilitated the formation and use of a list of
arbitrators with expertise acceptable to both management and the unions. A similar register of
arbitrators was dropped from the HLDAA in 1980 but a normal practice was for senior officials
of the Ministry of Labour, under delegated authority, to identify appropriate arbitrators.
Following the 1995 provincial election, a reorganization of public sector institutions, including
schools and hospitals, led to Bill 136. The Bill contained the proposed Public Sector Dispute
Resolution Act, 1997 which included a Dispute Resolution Commission. Organized labour
opposed many aspects of the Bill, including the proposed commission. When the Minister
announced a return to the sector-based system of appointing arbitrators, the unions believed the
selection of HLDAA chairpersons would thereafter be limited to mutually agreed candidates.
In early 1998, the Minister appointed four retired judges to chair several arbitration boards. They
were not appointed by mutual agreement nor were they on the agreed list compiled under
s. 49(10) of the Labour Relations Act, 1995. The unions were not consulted. The President of
the Ontario Federation of Labour complained to the Minister that the understanding about a
return to the status quo had been breached without consultation. The unions objected that retired
judges lack expertise, experience, tenure and independence from government. They also
complained the Minister had breached procedural fairness by not delegating the task of making

appointments to senior officials. The four judges initially appointed declined to act but other
retired judges accepted the appointments. The unions sought declarations that the Ministers
actions denied natural justice and lacked institutional independence and impartiality. The
Divisional Court dismissed the application for judicial review. The Court of Appeal allowed the
unions appeal, concluding that the Minister had created a reasonable apprehension of bias and
interfered with the independence and impartiality of the arbitrators, as well as defeating the
legitimate expectation of the unions contrary to the requirements of natural justice. The Minister
was ordered not to make any further appointments unless such appointments are made from the
long-standing and established roster of experienced labour relations arbitrators compiled under
s. 49(10) of the Labour Relations Act, 1995.
Held (McLachlin C.J. and Major and Bastarache JJ. dissenting): The appeal should be dismissed
for reasons that differ somewhat from those of the Court of Appeal. The Minister is required, in
the exercise of his power of appointment under s. 6(5) of the HLDAA, to be satisfied that
prospective chairpersons are not only independent and impartial but possess appropriate labour
relations expertise and are recognized in the labour relations community as generally acceptable
to both management and labour.
Per Gonthier, Iacobucci, Binnie, Arbour, LeBel and Deschamps JJ.: The Minister, as a matter of
law, was required to exercise his power of appointment in a manner consistent with the purpose
and objects of the statute that conferred the power. A fundamental purpose and object of the
HLDAA was to provide an adequate substitute for strikes and lock-outs. To achieve the statutory
purpose, as the Minister himself wrote on February 2, 1998, the parties must perceive the
system as neutral and credible. This view was fully supported by the HLDAAs legislative
history.
The Minister was not required to proceed with the selection of chairpersons by way of mutual
agreement or from the s. 49(10) roster. Nor were retired judges as a class reasonably seen as
biased against labour. Nevertheless, the Minister was required by the HLDAA, properly
interpreted, to select arbitrators from candidates who were qualified not only by their
impartiality, but by their expertise and general acceptance in the labour relations community.
Section 6(5) of the HLDAA contemplates the appointment of a person who is, in the opinion of
the Minister, qualified to act. The Ministers discretion is constrained by the scheme and object
of the Act as a whole, which is to create a neutral and credible substitute for the right to strike
and lock-out. Labour arbitration has traditionally rested on a consensual basis, with the arbitrator
chosen by the parties or being acceptable to both parties. Although the s. 6(5) power is
expressed in broad terms, the Minister is nevertheless required, in the exercise of that power, to
have regard to relevant labour relations expertise, independence, impartiality and general
acceptability within the labour relations community. These criteria are neither vague nor
uncertain. The livelihood of a significant group of professional labour arbitrators depends on
their recognized ability to fulfill them. The result is a perfectly manageable framework within
which the legislature intended to give the Minister broad but not unlimited scope within which to
make appointments in furtherance of the HLDAAs object and purposes. The Minister, under the
HLDAA, is not given a broad policy function. His narrow role is simply to substitute for the
parties in naming a third arbitrator in case of their disagreement and, given the context,

background and purpose of the Act, his rejection of labour relations expertise and general
acceptability as relevant factors was patently unreasonable.
Although, as a member of Cabinet, the Minister was committed to public sector rationalization
and had a perceived interest in the appointment process and the outcome of the arbitrations, the
legislature specifically conferred the power of appointment on the Minister and, absent a
constitutional challenge, clear and unequivocal statutory language conferring that authority
prevailed over the common law rule against bias. The Ministers power to delegate the
appointment process under s. 9.2(1) of the HLDAA was permissive only and to take away his
authority to make his own choice would amount to a judicial amendment of the legislation.
The Minister satisfied any duty to consult with the unions about the change in the appointments
process. There were extensive meetings during which the Minister signalled that the process was
subject to reform and that retired judges were potential candidates for appointments. The unions
made clear their opposition. Section 6(5) of the HLDAA did not impose on the Minister a
procedural requirement to consult with the parties to each arbitration nor does the evidence
establish a firm practice of appointing from a list or by mutual agreement. A general, ambiguous
promise to continue an existing system subject to reform does not suffice under the doctrine of
legitimate expectation to bind the Ministers exercise of his or her discretion.
The Court of Appeal had concluded that the Ministers approach tainted both the independence
and impartiality of the HLDAA arbitration boards to which the retired judges had been
appointed. This conclusion was not justified. The HLDAA commands the use of ad hoc
arbitration boards. Such boards are not characterized by financial security or security of tenure
beyond the life of the arbitration itself. The independence of arbitrators is guaranteed by
training, experience and mutual acceptability. Since s. 6(5) requires the appointment of
individuals qualified by training, experience and mutual acceptability, the proper exercise of the
appointment power would lead to a tribunal which would satisfy reasonable concerns about
institutional independence.
Impartiality raises different considerations. The Court of Appeal did not suggest that the retired
judges were in fact biased or partial but concluded that they might reasonably be seen to be
inimical to the interests of labour, at least in the eyes of the appellants. The test, however, is
not directed to the subjective perspective of one of the parties but to the reasonable, detached and
informed observer. Retired judges as a class have no greater interest than other citizens in the
outcome of the arbitrations and there are no substantial grounds to think they would do the
bidding of the Minister or favour employers so as to improve the prospect of future
appointments. A fully informed, reasonable person would not stigmatize retired judges, as a
class, with an anti-labour bias. Allegations of individual bias must be dealt with on a
case-by-case basis.
The appropriate standard of review is patent unreasonableness. The pragmatic and functional
approach applies to the judicial review of the exercise of a ministerial discretion and factors such
as the existence of a privative clause, the Ministers expertise in labour relations, the nature of

the question before the Minister and the wording of s. 6(5) all call for considerable deference. A
patently unreasonable appointment is one whose defect is immediate, obvious and so flawed in
terms of implementing the legislative intent that no amount of curial deference can justify letting
it stand.
The appointments were not patently unreasonable simply because the Minister did not restrict
himself to the s. 49(10) list of arbitrators. Some arbitrators on the list were unacceptable to the
unions and some acceptable arbitrators were not on the list, confirming the reasonableness of the
Ministers view that candidates could qualify without being on the list. However, in assessing
whether the appointments were patently unreasonable, the courts are entitled to have regard to
the importance of the factors the Minister altogether excluded from his consideration. In this
case, the Minister expressly excluded relevant factors that went to the heart of the legislative
scheme. The matters before the boards required the familiarity and expertise of a labour
arbitrator. Expertise and neutrality foster general acceptability. Appointment of an inexpert and
inexperienced chairperson who is not seen as generally acceptable in the labour relations
community is a defect in approach that is both immediate and obvious. Having regard to the
legislative intent manifested in the HLDAA, the Ministers approach to the s. 6(5) appointments
was patently unreasonable. The qualifications of specific appointees will have to be assessed on
a case-by-case basis if challenged.
The appeal is thus dismissed on the limited ground that appointments that excluded from
consideration labour relations expertise and general acceptability in the labour relations
community were patently unreasonable.
Per McLachlin C.J. and Major and Bastarache JJ. (dissenting): The appropriate standard of
review for the exercise of the Ministers appointment power under s. 6(5) of the HLDAA is
patent unreasonableness. The pragmatic and functional approach focusses on the particular
provision being invoked. The Minister exercised power under a single statute, his enabling
legislation, and, absent a constitutional challenge, the patent unreasonableness standard need not
make room for a review of statutory interpretation of enabling legislation on a correctness basis.
There is no basis for dividing the Ministers decision into component questions subject to
different standards of review, nor should the Ministers power be viewed as due less deference
because it is circumscribed by legislation. Not every administrative action involves a distinct
and identifiable exercise of statutory interpretation. Where, as here, the factors indicate that the
question raised by the provision is one intended by the legislators to be left to the exclusive
decision of the administrative decision maker, it simply is not one for the courts to make. The
presence of a privative clause is compelling evidence that deference is due. The Minister knows
more about labour relations than the courts and will be taken to have expertise. Deference is
owed to expert decision makers designated by the legislature. The fact-based nature of the
question before the Minister also points to deference and empowering the Minister, rather than
an apolitical actor, suggests a legislative intent of political accountability.

The Minister did not make appointments that were patently unreasonable. A contextual approach
to statutory interpretation of the enabling legislation is necessary for determining the criteria
relevant to exercise of the discretion. In some cases, the criteria are spelled out in the legislation,
regulations or guidelines or found in the specific purposes of the relevant Act. In others, the
relevant factors may be unwritten and derived from the purpose and context of the statute. In
this case, there are no relevant regulations, guidelines, or other instruments, and the statute does
not say much. The Act stipulates that appointees must be qualified in the opinion of the Minister,
expressly contemplating the importance of the Ministers opinion. Labour relations expertise,
independence and impartiality, reflected in broad acceptability, are not necessarily dominant or
obvious factors and should not be imposed as specific restrictions on the Ministers discretion.
The Minister developed an opinion and determined that judging experience was a relevant
qualification. The Act called for the Minister to reach his own opinion, not to consider a specific
determining factor. Given how much work it takes to identify labour relations experience and
broad acceptability as factors and to imply them into s. 6(5), weighing them less heavily than
another unwritten qualification, namely judicial experience, does not vitiate the appointments as
patently unreasonable. It takes significant searching or testing to find the alleged defect or even
the factors said to constrain the Minister. It is therefore difficult to characterize the appointments
as immediately or obviously defective, not in accordance with reason, clearly irrational, or so
flawed that no amount of curial deference could justify letting them stand based on a failure to
consider these factors. Recognition of the seriousness of quashing a decision as patently
unreasonable is crucial to maintaining the discipline of judicial restraint and deference, and our
intervention is not warranted in these circumstances.
Concerns about institutional independence and institutional impartiality do not render the
Ministers appointments patently unreasonable. The Act requires that the tribunals be ad hoc and
retired judges as a class cannot reasonably be seen as so partial that appointing them took the
Minister outside the bounds of his statutory discretion. The possibility of a successful challenge
to a particular board is not foreclosed but the constraints on the Ministers discretion do not
permit a general inquiry into the independence and impartiality of the boards on the basis of the
appointment process in the absence of a direct challenge to the boards actually appointed.
Pushpanathan v. Canada (Minister of Employment and Immigration) (SCC, 1999)
In 1985, the appellant claimed refugee status under the UN Convention Relating to the Status of
Refugees (Convention), as implemented by the Immigration Act, but his claim was never
adjudicated as he was granted permanent residence status in Canada under an administrative
program. The appellant was later arrested in Canada and charged with conspiracy to traffic in a
narcotic. At the time of his arrest, he was a member of a group in possession of heroin with a
street value of some $10 million. He pleaded guilty and was sentenced to eight years in prison.
In 1991, the appellant, then on parole, renewed his claim for Convention refugee status.
Employment and Immigration Canada subsequently issued a conditional deportation order
against him under ss. 27(1)(d) and 32.1(2) of the Act. Since the deportation pursuant to those
sections is conditional upon a determination that the claimant is not a Convention refugee, the
appellants claim was referred to the Convention Refugee Determination Division of the
Immigration and Refugee Board. The Board decided that the appellant was not a refugee by

virtue of the exclusion clause in Art. 1F(c) of the Convention, which provides that the provisions
of the Convention do not apply to a person who has been guilty of acts contrary to the purposes
and principles of the United Nations. The Federal Court, Trial Division dismissed the
appellants application for judicial review and certified the following as a serious question of
general importance for consideration: Is it an error of law for the Refugee Division to interpret
Art. 1F(c) of the Convention to exclude from refugee status an individual guilty of a serious
narcotics offence committed in Canada? The Federal Court of Appeal answered no and upheld
the judgment of the Trial Division.
Held (Cory and Major JJ. dissenting): The appeal should be allowed.
Per LHeureux-Dub, Gonthier, McLachlin and Bastarache JJ.: A pragmatic and functional
analysis of the Immigration Act leads to the conclusion that, in this case, the correctness standard
should be applied to the Boards decision. The use of the words a serious question of general
importance in s. 83(1) of the Act is the key to the legislative intention as to the standard of
review. The general importance of the question -- that is, its applicability to numerous future
cases -- warrants the review by a court of justice. Moreover, the purpose of Art. 1F(c) of the
Convention is to protect human rights and the Board appears to enjoy no relative expertise in that
matter. The Boards expertise is in accurately evaluating whether the criteria for refugee status
have been met and, in particular, in assessing the nature of the risk of persecution faced by the
applicant if returned to his country of origin. The relationship between the Boards expertise and
Art. 1F(c) is thus remote. Nor is there any indication that the Boards experience with previous
factual determinations of risk of persecution gives it any added insight into the meaning or
desirable future development of that provision. The legal principle here is easily separable from
the undisputed facts of the case and would undoubtedly have a wide precedential value. The
factual expertise enjoyed by the Board does not aid it in the interpretation of this general legal
principle. Furthermore, the Board itself is not responsible for policy evolution. Finally, the
absence of a strong privative clause is another factor militating against deference.
Since the purpose of the Immigration Act incorporating Art. 1F(c) is to implement the underlying
Convention, an interpretation consistent with Canadas obligations under the Convention must be
adopted. The wording of the Convention and the rules of treaty interpretation are therefore
applicable to determine the meaning of Art. 1F(c) in domestic law. The general words purposes
and principles of the United Nations in Art. 1F(c) are not so unambiguous as to foreclose
examination of other indications of the proper scope of the provision. The purpose and context
of the Convention as a whole, as well as the purpose of the individual provision in question as
suggested by the travaux prparatoires, provide helpful interpretative guidelines.
The Convention has a human rights character. While Art. 1 of the Convention defines who is a
refugee, the general purpose of Art. 1F is to exclude ab initio those who are not bona fide
refugees at the time of their claim for refugee status. The purpose of Art. 33 of the Convention,
by contrast, is to allow for the refoulement of a bona fide refugee to his native country where he
poses a danger to the security of the country of refuge, or to the safety of the community.
Although all of the acts described in Art. 1F could presumably fall within the grounds for

refoulement described in Art. 33, the two are distinct. Article 1F(c) is not limited to acts
performed outside the country of refuge. The relevant criterion under Art. 1F(c) is the time at
which refugee status is obtained and any act performed before a person has obtained that status
must be considered relevant pursuant to Art. 1F(c). The rationale of Art. 1F of the Convention is
that those who are responsible for the persecution which creates refugees should not enjoy the
benefits of a convention designed to protect those refugees. In the light of the general purposes
of the Convention and the indications in the travaux prparatoires as to the relative ambit of
Arts. 1F(a) and 1F(c), the purpose of Art. 1F(c) is to exclude those individuals responsible for
serious, sustained or systemic violations of fundamental human rights which amount to
persecution in a non-war setting. Article 1F(c) may be applicable to non-state actors. Although
it may be more difficult for a non-state actor to perpetrate human rights violations on a scale
amounting to persecution without the state thereby implicitly adopting those acts, the possibility
should not be excluded a priori.
Article 1F(c) will thus be applicable where there is consensus in international law that particular
acts constitute sufficiently serious and sustained violations of fundamental human rights as to
amount to persecution, or are explicitly recognized as contrary to the UN purposes and
principles. First, where a widely accepted international agreement or UN resolution explicitly
declares that the commission of certain acts is contrary to the UN purposes and principles, then
there is a strong indication that those acts will fall within Art. 1F(c). Where such declarations or
resolutions represent a reasonable consensus of the international community, then that
designation should be considered determinative. A second category of acts which fall within the
scope of Art. 1F(c) are those which a court is able, for itself, to characterize as serious, sustained
and systemic violations of fundamental human rights constituting persecution. Where the rule
which has been violated is very near the core of the most valued principles of human rights and
is recognized as immediately subject to international condemnation and punishment, then even
an isolated violation could lead to an exclusion under Art. 1F(c). The status of a violated rule as
a universal jurisdiction offence would be a compelling indication that even an isolated violation
constitutes persecution. A serious and sustained violation of human rights amounting to
persecution may also arise from a particularly egregious factual situation, including the extent of
the complicity of the claimant.
Conspiring to traffic in a narcotic is not a violation of Art. 1F(c). Even though international
trafficking in drugs is an extremely serious problem that the UN has taken extraordinary
measures to eradicate, in the absence of clear indications that the international community
recognizes drug trafficking as a sufficiently serious and sustained violation of fundamental
human rights as to amount to persecution, either through a specific designation as an act contrary
to the UN purposes and principles, or through international instruments which otherwise indicate
that trafficking is a serious violation of fundamental human rights, individuals should not be
deprived of the essential protections contained in the Convention for having committed those
acts. Article 33 of the Convention and its counterparts in the Immigration Act, ss. 53 and 19, are
designed to deal with the expulsion of individuals who present a threat to Canadian society, and
the grounds for such a determination are wider and more clearly articulated. The Minister,
therefore, is not precluded from taking appropriate measures to ensure the safety of Canadians.
Lastly, the presence of Art. 1F(b), which excludes from the protection of the Convention a person

who has committed a serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee, suggests that even a serious non-political crime such as
drug trafficking should not be included in Art. 1F(c).
Per Cory and Major JJ. (dissenting): What constitutes an act contrary to the purposes and
principles of the United Nations for the purposes of the Convention is a question of law. While
the Immigration and Refugee Board must be accorded some deference in its findings of fact, that
deference should not be extended to a finding on a question of law. The Board cannot be said to
have any particular expertise in legal matters. Therefore the issue is whether the Boards
decision on the question of law was correct.
The category of acts contrary to the UN purposes and principles should not be restricted to those
expressly declared to be so. A domestic tribunal is entitled, upon considering the relevant
material, to find that the phrase includes other types of acts. While not every UN initiative is so
central to its purposes and principles that any act which violates or undermines those initiatives
is contrary to the UN purposes and principles, some problems have been recognized by the
international community as being so serious and of such a nature that they pose a threat to the
entire international community and the principles of its social order. Conduct which directly or
significantly contributes to these problems or which violates agreed principles or obligations
with respect to them should, in appropriate cases, be regarded as contrary to the UN purposes
and principles.
While serious or systematic violation of human rights would be conduct that is contrary to the
UN purposes and principles, it is not the only conduct that should be considered in interpreting
Art. 1F(c) of the Convention. The determination of what constitutes an act contrary to the UN
purposes and principles need not be limited to the consideration of one purpose notwithstanding
the fact that it is important and that the Convention is a human rights instrument. Although the
purpose of the instrument will be taken into account in interpreting its provisions, it must not
restrict the content of the exclusion so as to limit it to conduct relating directly to human rights.
All of the UN purposes and principles should be considered. Furthermore, some types of
conduct may indirectly but significantly contribute to the violation of human rights.
The Convention should be interpreted in a manner consistent with the contemporary context. As
international law develops, the content of a phrase such as acts contrary to the purposes and
principles of the United Nations must be capable of development. Courts should recognize that
the guidance provided by interpretive aids such as the travaux prparatoires and subsequent
practice must be considered in the light of the current state of the law and international
understandings. The travaux prparatoires should be taken into account, yet this does not mean
that courts are restricted to a precise interpretation of that material. Rather, consideration should
be given to the underlying principles and concerns that they express with the aim of giving them
a contemporary meaning. Similarly, with regard to state practice, some consistency should be
maintained with the line of interpretation revealed by the practice of state parties, but that
interpretation must be adjusted to take into account evolving ideas and principles in international
law.

Although traditionally it was thought that the UN purposes and principles, like international law
generally, are addressed only to states, and can be violated only by state actors, it is now
generally accepted that an individual acting in his private capacity can commit acts which
constitute violations of international law.
Significant trafficking in a dangerous illicit drug can constitute an act which is contrary to the
UN purposes and principles and would thus form the basis of exclusion from refugee status
pursuant to Art. 1F(c). The rationale for including illicit drug trafficking in Art. 1F(c) is the
reality that this activity is recognized, both legally and practically, as an activity that not only is a
domestic criminal offence, but occasions very serious and significant harm in the international
community. The categorization of an act as an international crime or crime of international
concern is not determinative of the question. The additional factor which distinguishes illicit
drug trafficking from some other crimes of international concern or UN initiatives is the nature
and gravity of the harm to people in countries around the world and to the international
community as a whole that results from this activity. The harm caused by the illicit traffic in
drugs is of the utmost severity. This illicit traffic takes a dreadful toll on the lives of individuals,
families and communities. It destabilizes and retards the development of whole nations and
regions. Drug trafficking now also threatens peace and security at a national and international
level. It affects the sovereignty of some states, the right of self-determination and democratic
government, economic, social and political stability and the enjoyment of human rights. Many
of the UN purposes and principles are undermined, directly or indirectly, by the international
trade in illicit drugs. It is on this basis that at least some individuals who participate in and
contribute to this activity must be considered to be committing acts contrary to the UN purposes
and principles.
The statements on this subject by the international community, including the relevant
conventions and General Assembly resolutions, reflect an acute awareness of the nature and
gravity of the problem, and a severe condemnation of the activities that give rise to the problem.
While the UN has never specifically declared that drug trafficking is contrary to its purposes and
principles, it has clearly and frequently recognized and denounced the evils of this activity.
There are also many statements reflecting an awareness that trafficking threatens essential
aspects of the UN purposes and principles. The statements of the UN and of the international
community lead inexorably to the conclusion that those engaged in trafficking in illicit drugs are
responsible, directly or indirectly, for harms that are so widespread and so severe that they
undermine the very purposes and principles upon which the UN is based. It follows that their
actions must be considered acts contrary to the purposes and principles of the United Nations
and thus come within the exclusion set out in Art. 1F(c). However, not all acts within the broad
category of illicit drug trafficking constitute acts contrary to the UN purposes and principles.
Distinctions must be drawn based on the type and scale of activities. It is those actually engaged
in trafficking who reap most of the profits, cause the greatest harm and therefore bear the greatest
responsibility for perpetuating the illicit trade. Those who are merely consumers are often
victims themselves and do not bear the same responsibility.

Here, the appellant was an important participant in a major drug operation with an organized
group trafficking in heroin. He trafficked on a large scale in the most debilitating of drugs.
While not every domestic narcotics offence will provide a basis for exclusion under Art. 1F(c), in
light of the seriousness of the appellants crime he should, as a result of his actions, be excluded.
Khosa v. Canada (SCC, 2009)
K, a citizen of India, immigrated to Canada with his family in 1996, at the age of 14. In 2002, he
was found guilty of criminal negligence causing death and received a conditional sentence of two
years less a day. A valid removal order was issued to return him to India.
K appealed the order, but the majority of the Immigration Appeal Division (IAD) of the
Immigration and Refugee Board, after considering the Ribic factors and the evidence, denied
special relief on humanitarian and compassionate grounds pursuant to s. 67(1) (c) of the
Immigration and Refugee Protection Act (IRPA ). A majority of the Federal Court of Appeal
applied a reasonableness simpliciter standard and set aside the IAD decision. It found that the
majority of the IAD had some kind of fixation with the fact that the offence was related to
street-racing. On the issue of the possibility of rehabilitation, the majority of the IAD merely
acknowledged the findings of the criminal courts in that regard, which were favourable to K, and
did not explain why it came to the contrary conclusion. In the end, that court concluded that the
majority of the IAD had acted unreasonably in denying relief.
Held (Fish J. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Binnie, LeBel, Abella and Charron JJ.: This Courts decision in
Dunsmuir, which was released after the decisions of the lower courts in this case, recognized
that, with or without a privative clause, a measure of deference has come to be accepted as
appropriate where a particular decision has been allocated to administrative decision-makers in
matters that relate to their special role, function and expertise. A measure of deference is
appropriate whether or not the court has been given the advantage of a statutory direction,
explicit or by necessary implication. These general principles of judicial review are not ousted
by s. 18.1 of the Federal Courts Act which deals essentially with grounds of review of
administrative action, not standards of review. [25]
A legislature has the power to specify a standard of review if it manifests a clear intention to do
so. However, where the legislative language permits, the court (a) will not interpret grounds of
review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate
approach to judicial review in a particular situation, and (c) will presume the existence of a
discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach
to judicial intervention in administrative matters. [51]
Resort to the flexibility of the general principle of judicial review is all the more essential in the
case of a provision like s. 18.1 of the Federal Courts Act which is not limited to particular
issues before a particular adjudicative tribunal but covers the full galaxy of federal decision-

makers who operate in different decision-making environments under different statutes with
distinct grants of decision-making powers. [28] [33]
The language of s. 18.1 generally sets out threshold grounds which permit but do not require the
court to grant relief. Despite a difference in the meaning of the English and French versions in
the relevant language of s. 18.1(4), the provision should be interpreted to permit a court to
exercise its discretion in matters of remedy depending on the courts appreciation of the
respective roles of the courts and the administration as well as the circumstances of each case.
The discretion must be exercised judicially, but the appropriate judicial basis for its exercise
includes the general principles dealt with in Dunsmuir. [36]
Dunsmuir establishes that there are now only two standards of review: correctness and
reasonableness. No authority was cited suggesting that a correctness standard of review is
appropriate for IAD decisions under s. 67(1) (c) of the IRPA , and the relevant factors in a
standard of review inquiry point to a reasonableness standard. These factors include: (1) the
presence of a privative clause; (2) the purpose of the IAD as determined by its enabling
legislation the IAD determines a wide range of appeals under the IRPA and its decisions are
reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of
the question at issue before the IAD Parliament has provided in s. 67(1) (c) a power to grant
exceptional relief and this provision calls for a fact-dependent and policy-driven assessment by
the IAD itself; and (4) the expertise of the IAD dealing with immigration policy. These factors
must be considered as a whole, bearing in mind that not all factors will necessarily be relevant
for every single case. [53-57]
Where, as here, the reasonableness standard applies, it requires deference. Reviewing courts
ought not to reweigh the evidence or substitute their own appreciation of the appropriate
solution, but must rather determine if the outcome falls within a range of reasonable outcomes.
In this case, the question whether K had established sufficient humanitarian and compassionate
considerations to warrant relief from his removal order was a decision which Parliament
confided to the IAD, not to the courts. [4] [59]
The IAD reasons, both the majority and dissent, disclose with clarity the considerations in
support of both points of view, and the reasons for the disagreement as to outcome. At the
factual level, the IAD divided in large part over differing interpretations of Ks expression of
remorse. This is the sort of factual dispute which should be resolved by the IAD not the courts.
The majority considered each of the Ribic factors, reviewed the evidence and decided that, in the
circumstances of this case, discretionary relief should be refused. While the findings of the
criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and
second of the Ribic factors), were properly noted, the IAD had a mandate different from that of
the criminal courts. The issue before it was not the potential for rehabilitation for purposes of
sentencing, but rather whether the prospects for rehabilitation were such that, alone or in
combination with other relevant factors, they warranted special discretionary relief from a valid
removal order. The IAD was required to reach its own conclusions based on its own appreciation
of the evidence and it did so. [64-66]

In light of the deference properly owed to the IAD under s. 67(1) (c) of the IRPA , there was no
proper basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special
relief in this case. It cannot be said that this decision fell outside the range of reasonable
outcomes. [60] [67]

Per Rothstein J.: Where a legislature has expressly or impliedly provided for standards of
review, courts must follow that legislative intent, subject to any constitutional challenge. With
respect to s. 18.1(4) of the Federal Courts Act , the language of para. (d) makes clear that
findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere
with a decision based on erroneous findings of fact where the federal board, commission or other
tribunals factual finding was made in a perverse or capricious manner or without regard for the
material before it. By contrast with para. (d), there is no suggestion that courts should defer in
reviewing a question that raises any of the other criteria in s. 18.1(4) . Where Parliament
intended a deferential standard of review in s. 18.1(4) , it used clear and unambiguous language,
as it has in para. (d) regarding facts. The necessary implication is that where Parliament did not
provide for deferential review, it intended the reviewing court to apply a correctness standard as
it does in the regular appellate context. [70] [72] [113] [117]
While recourse to the common law is appropriate where Parliament has employed common law
terms or principles without sufficiently defining them, it is not appropriate where the legislative
scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the
case with s. 18.1(4) of the Federal Courts Act . Courts must give effect to the legislatures
words and cannot superimpose on them a duplicative common law analysis. The Dunsmuir
standard of review should be confined to cases in which there is a strong privative clause.
Excepting such cases, it does not apply to s. 18.1(4) . The application of Dunsmuir outside the
strong privative clause context marks a departure from the conceptual and jurisprudential origins
of the standard of review analysis. [70] [74] [106] [136]
The deference approach emerged as a means of reconciling Parliaments intent to immunize
certain administrative decisions from review with the supervisory role of courts in a rule of law
system. The creation of expert administrative decision-makers evidenced a legislative intent to
displace or bypass the courts as primary adjudicators in a number of areas, but it was only with
the enactment of privative clauses, which marked the area of tribunal expertise that the
legislature was satisfied warranted deference, that a legislature indicated an intent to oust, or at
the very least restrict, the courts review role. Whereas tribunal expertise was a compelling
rationale for imposing a privative clause, it was not a free-standing basis for deference. The
approach of judicially imputing expertise which followed, even on questions of law, was a
departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the
legislatures recognition of relative tribunal expertise. [79] [82-84] [87]
There is no dispute that reviewing courts, whether in the appellate or judicial review contexts,
should show deference to lower courts and administrative decision-makers on questions of fact

and on questions involving mixed fact and law, where a legal issue cannot be extricated from a
factual or policy finding. However, where a legal issue can be extricated from a factual or policy
inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a
privative clause. It is not for the court to impute tribunal expertise on legal questions, absent a
privative clause and, in doing so, assume the role of the legislature to determine when deference
is or is not owed. Recognizing expertise as a free-standing basis for deference on questions that
reviewing courts are normally considered to be expert on departs from the search for legislative
intent that governs this area. [89-93]
Concerns regarding the rigidity of the legislated standards are misplaced. A review of the
Federal Courts Act makes clear that the focus of the analysis should be on the nature of the
question under review and not on the type of administrative decision-maker. Even given this
legislative focus on the nature of the question under review, not all administrative decisionmakers will be subject to the same standards of review. Where a decision-makers enabling
statute purports to preclude judicial review on some or all questions through a privative clause,
deference will apply and a Dunsmuir standard of review analysis will be conducted. [109-110]
Section 18.1(4) confers on the Federal Courts the discretion to grant or deny relief in judicial
review. The remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the
review itself. The traditional common law discretion to refuse relief on judicial review concerns
the parties conduct, any undue delay and the existence of alternative remedies which is wholly
distinct from the common law of standard of review analysis. Reliance upon this discretion
contained in s. 18.1(4) to support the view that it opens the door to the Dunsmuir standard of
review analysis is inappropriate. [131] [135-136]
The IADs decision not to grant relief in this case should be upheld. The application of the Ribic
factors to the case before it and its exercise of discretion is fact-based. The IADs factual
findings were not perverse or capricious and were not made without regard to the evidence.
[137]
Per Deschamps J.: There is agreement with Rothstein J. that since s. 18.1(4) of the Federal
Courts Act sets legislated standards of review, those standards oust the common law. [138]
Per Fish J. (dissenting): The standard of review applicable is reasonableness, and the IADs
decision does not survive judicial scrutiny under that standard. The IADs task was to look to
all the circumstances of the case in order to determine whether sufficient humanitarian and
compassionate considerations existed to warrant relief from a removal order. The IAD placed
the greatest weight on three factors: Ks remorse, rehabilitation, and likelihood of reoffence.
Despite abundant evidence that K was extremely unlikely to reoffend and had taken
responsibility for his actions, the IAD focussed on a single fact Ks denial that he was street
racing and based its refusal to grant relief largely on that fact alone. While Ks denial may
well evidence some lack of insight, it cannot be said to contradict still less to outweigh, on a
balance of probabilities all of the evidence in his favour on the issues of remorse,
rehabilitation and likelihood of reoffence. The IADs cursory treatment of the sentencing judges
favourable findings on remorse and the risk of recidivism are particularly troubling. While a

criminal courts findings are not necessarily binding upon an administrative tribunal with a
distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to
consider those findings and to explain the basis of its disagreement with the sentencing judges
decision. Ks denial of street racing is, at best, of little probative significance in determining his
remorse, rehabilitation and likelihood of reoffence. The IADs conclusion that there was
insufficient evidence upon which a determination could be made that K does not represent a
risk to the public is not only incorrect, but unreasonable. Decisions of the IAD are entitled to
deference, but deference ends where unreasonableness begins. [139-140] [145] [147] [149-151]
[153-154] [160]
Alberta (Information and Privacy Commissioner) v. A.T.A.,
The Information and Privacy Commissioner received complaints that the Alberta Teachers
Association (ATA) disclosed private information in contravention of the Alberta Personal
Information Protection Act (PIPA). At the time, s. 50(5) of PIPA provided that an inquiry must
be completed within 90 days of the complaint being received unless the Commissioner notified
the parties that he was extending the time period and he provided an anticipated date for
completing the inquiry. The Commissioner took 22 months from the initial complaint before
extending the estimated date on which the inquiry would be concluded. Seven months later, an
adjudicator delegated by the Commissioner issued an order, finding that the ATA had
contravened the Act. The ATA applied for judicial review of the adjudicators order. In
argument, it claimed for the first time that the Commissioner had lost jurisdiction due to his
failure to extend the period for completion of the inquiry within 90 days of the complaint being
received. The chambers judge quashed the adjudicators decision on that basis. A majority of
the Court of Appeal upheld the chambers judges decision.
Held: The appeal should be allowed.
Per McLachlin C.J. and LeBel, Fish, Abella, Charron and Rothstein JJ.: Although
the timelines issue was not raised before the Commissioner or the adjudicator, the adjudicator
implicitly decided that providing an extension after 90 days did not automatically terminate the
inquiry. The adjudicators decision was subject to judicial review on a reasonableness standard
and her decision was reasonable. The adjudicators order should be reinstated and the matter
should be remitted to the chambers judge to consider issues not dealt with and resolved in the
judicial review.
A court has discretion not to undertake judicial review of an issue and generally will
not review an issue that could have been, but was not, raised before the tribunal. However, in
this case, the rationales for the general rule have limited application. The Commissioner has
consistently expressed his views in other cases, so we have the benefit of his expertise. No
evidence was required to consider the timelines issue and no prejudice was alleged.
In the present appeal, the letter notifying the parties of the extension was sent after
the expiration of 90 days. An inquiry was conducted and the adjudicator ultimately rendered an
order against the ATA. The issue raised by the ATA on judicial review could only be decided in

one of two ways either the consequence of an extension was that the inquiry was terminated
or not. Both the Commissioner and the adjudicator implicitly decided that providing an
extension after 90 days did not result in the inquiry being automatically terminated.
In this case, a reasonableness standard applied on judicial review. The
Commissioner was interpreting his own statute and the question was within his specialized
expertise. Deference will usually result where a tribunal is interpreting its own statute or statutes
closely connected to its function, unless the question falls into a category of question to which
the correctness standard continues to apply. The timelines question does not fall into such a
category: it is not a constitutional question, a question regarding the jurisdictional lines between
competing specialized tribunals, a question of central importance to the legal system as a whole,
nor a true question of jurisdiction or vires. Experience has shown that the category of true
questions of jurisdiction is narrow and it may be that the time has come to reconsider whether
this category exists and is necessary to identify the appropriate standard of review. Uncertainty
has plagued standard of review analysis for many years. The true questions of jurisdiction
category has caused confusion to counsel and judges alike and without a clear definition or
content to the category, courts will continue to be in doubt on this question. For now, it is
sufficient to say that, unless the situation is exceptional, the interpretation by a tribunal of its
home statute or statutes closely connected to its function should be presumed to be a question of
statutory interpretation subject to deference on judicial review. As long as the true question of
jurisdiction category remains, a party seeking to invoke it should be required to demonstrate
why the court should not review a tribunals interpretation of its home statute on the standard of
reasonableness.
The deference due to a tribunal does not disappear because its decision was implicit.
Parties cannot gut the deference owed to a tribunal by failing to raise the issue before the tribunal
and thereby mislead the tribunal on the necessity of providing reasons. When the decision under
review concerns an issue that was not raised before the decision maker, the reviewing court can
consider reasons which could have been offered in support of the decision. When a reasonable
basis for an implied decision is apparent, a reviewing court should uphold the decision as
reasonable. In some cases, it may be that the reviewing court cannot adequately show deference
without first providing the decision maker the opportunity to give its own reasons for the
decision. It will generally be inappropriate to find that there is no reasonable basis for the
tribunals decision without first giving the tribunal an opportunity to provide one.
Reasons given by a tribunal in other decisions on the same issue can assist a
reviewing court in determining whether a reasonable basis for an implied decision exists. Other
decisions by the Commissioner and the adjudicator have provided consistent analyses of the
similarly worded s. 69(6) of the Freedom of Information and Protection of Privacy Act
(FOIPA). The Commissioner has held that a similar 90-day time limit in s. 69(6) applies only
to his duty to complete an inquiry and not to extending time to complete an inquiry. His
interpretation of s. 69(6) systematically addresses the text of that provision, its purposes, and the
practical realities of conducting inquiries. His interpretation of s. 69(6) satisfies the values of
justification, transparency and intelligibility in administrative decision making.

It is reasonable to assume that the Commissioners interpretations of s. 69(6) of

FOIPA are the reasons of the adjudicator in this case. Both s. 50(5) of PIPA and s. 69(6) of
FOIPA govern inquiries conducted by the Commissioner. They are identically structured and use
almost identical language. It was reasonable for the adjudicator to apply the Commissioners
interpretation of s. 69(6) of FOIPA to s. 50(5) of PIPA. The interpretation does not render
statutory requirements of notice meaningless. No principle of statutory interpretation requires a
presumption that an extension must be granted before the expiry of the 90-day time limit simply
because s. 50(5) is silent as to when an extension of time can be granted. The distinction
between mandatory and directory provisions does not arise in this case because this is not a case
of failure by a tribunal to comply with a legislative direction. Therefore, there exists a
reasonable basis for the adjudicators implied decision in this case.
Per Binnie and Deschamps JJ.: There is agreement with Cromwell J. that the
concept of jurisdiction is fundamental to judicial review of administrative tribunals and to the
rule of law. Administrative tribunals operate within a legal framework dictated by the
Constitution and limited by their respective statutory mandates and it is the courts that determine
the outer limits of those mandates. On the other hand, the notion of a true question of
jurisdiction or vires is not helpful at the practical everyday level of deciding whether or not the
courts are entitled to intervene in a particular administrative decision.
The middle ground lies in the more nuanced approach adopted in Canada
(Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3
S.C.R. 471, that if the issue relates to the interpretation and application of a tribunals own
statute, is within its expertise and does not raise issues of general legal importance, the standard
of reasonableness will generally apply. The expression issues of general legal importance
means issues whose resolution has significance outside the operation of the statutory scheme
under consideration. Reasonableness is a deceptively simple omnibus term which gives
reviewing judges a broad discretion to choose from a variety of levels of scrutiny from the
relatively intense to the not so intense. The calibration will be challenging enough for reviewing
judges without superadding an elusive search for something that can be labelled a true question
of vires or jurisdiction.
On the other hand, Rothstein J.s creation of a presumption based on insufficient
criteria simply adds a further step to what should be a straightforward analysis. A simplified
approach would be that if the issue before the reviewing court relates to the interpretation or
application of a tribunals home statute and related statutes that are also within the core
function and expertise of the decision maker, and the issue does not raise matters of legal
importance beyond the statutory scheme under review, the Court should afford a measure of
deference under the standard of reasonableness. Otherwise, the last word on questions of law
should be left with the courts.
Per Cromwell J.: In this case the applicable standard of review is reasonableness.
The Commissioners power to extend time is granted in broad terms in the context of a detailed
and highly specialized statutory scheme which it is the Commissioners duty to administer and
under which he is required to exercise many broadly granted discretions. The adjudicators
decision on the timeliness issue should be reinstated and the matter should be remitted to the

chambers judge to consider the issues not dealt with and resolved in the judicial review
proceedings. Courts have a constitutional responsibility to ensure that administrative action does
not exceed its jurisdiction, but they must also give effect to legislative intent when determining
the applicable standard of judicial review. The standard of review analysis identifies the limits of
the legality of a tribunals actions and defines the limits of the role of the reviewing court. When
existing jurisprudence has not already satisfactorily determined the standard of review applicable
to the case at hand, the courts apply several relevant factors. These factors allow the courts to
identify questions that are reviewable on a standard of correctness. Elevating to a virtually
irrefutable presumption the general guideline that a tribunals interpretation of its home statute
will not often raise a jurisdictional question goes well beyond saying that deference will usually
result where a tribunals interpretation of its home statute is in issue. The terms jurisdictional
and vires are unhelpful to the standard of review analysis but true questions of jurisdiction and
vires do exist. There are legal questions in home statutes whose resolution legislatures do not
intend to leave to the tribunal. As this Courts recent jurisprudence confirms, as a matter of
either constitutional law or legislative intent, a tribunal must be correct on certain issues. The
fact that s. 50(5) of PIPA is in the Commissioners home statute did not relieve the reviewing
court of its duty to consider the argument that the provision was one whose interpretation the
legislator intended to be reviewed for correctness, by examining the provision and other relevant
factors.
Canadian Human Rights Commission v. A.G. Canada (SCC, 2011)
M filed a human rights complaint with the Canadian Human Rights Commission alleging that the
Canadian Forces had discriminated against her on the ground of sex contrary to the provisions of
the Canadian Human Rights Act (CHRA ). The Canadian Human Rights Tribunal
(Tribunal) concluded that Ms complaint of sexual harassment was substantiated in part and
she was awarded $4,000 to compensate for suffering in respect of feelings or self-respect. M
applied for legal costs. The Tribunal determined that it had the authority to order costs pursuant
to s. 53(2) (c) and (d) of the CHRA and awarded M $47,000 in this regard. The Federal Court
upheld the Tribunals decision on its authority to award costs. The Federal Court of Appeal
allowed an appeal of this decision and held that the Tribunal had no authority to make a costs
award.
Held: The appeal should be dismissed.
Administrative tribunals are generally entitled to deference in respect of the legal
interpretation of their home statutes and laws or legal rules closely connected to them. However,
general questions of law that are both of central importance to the legal system as a whole and
outside the adjudicators specialized area of expertise must be reviewed on a standard of
correctness. The proper standard of review of the Tribunals decision to award legal costs to the
successful complainant is reasonableness. Whether the Tribunal has the authority to award costs
is a question of law which is located within the core function and expertise of the Tribunal and
which relates to the interpretation and the application of its enabling statute. This issue is neither
a question of jurisdiction, nor a question of law of central importance to the legal system as a
whole falling outside the Tribunals area of expertise within the meaning of Dunsmuir.

The precise interpretive question before the Tribunal was whether the words of
s. 53(2) (c) and (d), which authorize the Tribunal to compensate the victim . . . for any expenses
incurred by the victim as a result of the discriminatory practice permit an award of legal costs.
An examination of the text, context and purpose of these provisions reveals that the Tribunals
interpretation was not reasonable. Human rights legislation expresses fundamental values and
pursues fundamental goals. It must be interpreted liberally and purposively so that the rights
enunciated are given their full recognition and effect. However, the intent of Parliament must be
respected by reading the words of their provision in their entire context and according to their
grammatical and ordinary sense, harmoniously with the scheme and object of the Act. The
words any expenses incurred by the victim taken on their own and divorced from their context
are wide enough to include legal costs. However, when these words are read in their statutory
context, they cannot reasonably be interpreted as creating a stand-alone category of
compensation capable of supporting any type of disbursement causally connected to the
discrimination. The Tribunals interpretation violates the legislative presumption against
tautology, makes the repetition of the term expenses redundant and fails to explain why the
term is linked to the particular types of compensation described in those paragraphs. Moreover,
the term costs has a well-understood meaning that is distinct from compensation or expenses.
If Parliament intended to confer authority to confer costs, it is difficult to understand why it did
not use this very familiar and widely used legal term of art to implement that purpose. The
legislative history of the CHRA , the Commissions understanding of costs authority as well as a
review of parallel provincial legislation all support the conclusion that the Tribunal has no
authority to award costs. Finally, the Tribunals interpretation would permit it to make a
free-standing award for pain and suffering coupled with an award of legal costs in a potentially
unlimited amount. This view is difficult to reconcile with either the monetary limit of an award
for pain and suffering or the omission of any express authority to award expenses in s. 53(3) .
No reasonable interpretation of the relevant statutory provisions can support the
view that the Tribunal may award legal costs to successful complainants. Faced with a difficult
point of statutory interpretation and conflicting judicial authority, the Tribunal adopted a
dictionary meaning of expenses and articulated what it considered to be a beneficial policy
outcome rather than engaging in an interpretative process taking account of the text, context and
purpose of the provisions in issue. A liberal and purposive interpretation cannot supplant a
textual and contextual analysis simply in order to give effect to a policy decision different from
the one made by Parliament.
Catalyst Paper Corp. v. Cowichan (SCC, 2012)
One of Cs four mills is located in the District of North Cowichan on Vancouver Island. C seeks
to have a municipal taxation bylaw set aside on the basis that it is unreasonable having regard to
objective factors such as consumption of municipal services. The District argued that
reasonableness must take into account not only matters directly related to the treatment of a
particular taxpayer, but a broad array of social, economic and demographic factors relating to the
community as a whole. The chambers judge upheld the bylaw. The Court of Appeal dismissed
the appeal.

Held: The appeal should be dismissed.

The applicable standard of review is reasonableness. The power of the courts to set
aside municipal bylaws is a narrow one, and cannot be exercised simply because a bylaw
imposes a greater share of the tax burden on some ratepayers than on others. The critical
question is what factors the court should consider in determining what lies within the range of
possible reasonable outcomes. Courts reviewing bylaws for reasonableness must approach the
task against the backdrop of the wide variety of factors that elected municipal councillors may
legitimately consider in enacting bylaws, including broad social, economic and political issues.
Only if the bylaw is one no reasonable body informed by these factors could have taken will the
bylaw be set aside.
The fact that wide deference is owed to municipal councils does not mean that they
have carte blanche. Reasonableness limits municipal councils in the sense that the substance of
their bylaws must conform to the rationale of the statutory regime set up by the legislature. The
range of reasonable outcomes is circumscribed by the purview of the legislative scheme that
empowers a municipality to pass a bylaw. Municipal councils must also adhere to appropriate
processes and cannot act for improper purposes.
The bylaw falls within a reasonable range of outcomes. The bylaw does not
constitute a decision that no reasonable elected municipal council could have made. The District
Council considered and weighed all relevant factors. The process of passing the bylaw was
properly followed. The reasons for the bylaw were clear and the Districts policy had been laid
out in a five-year plan. The Districts approach complies with the Community Charter, which
permits municipalities to apply different tax rates to different classes of property. The
Community Charter does not support Cs contention that property value taxes ought to be limited
by the level of service consumed. Although the bylaw favours residential property owners, it is
not unreasonably partial to them.
Newfoundland and Labrador Nurses Union, v. Newfoundland, (SCC, 2011)
The union disputed an arbitrators award which involved the calculation of vacation benefits.
The issue the arbitrator had to decide was whether time as a casual employee could be credited
towards annual leave entitlement if that employee became permanent. In his decision, the
arbitrator concluded that it was not to be included in calculating the length of vacation
entitlements. On judicial review, the arbitrators reasons were found to be insufficient and
therefore unreasonable and the decision was set aside. The majority of the Court of Appeal
agreed with the arbitrator.
Held: The appeal should be dismissed.
Dunsmuir confirmed that in determining whether a decision is reasonable, the
inquiry for a reviewing court is about justification, transparency and intelligibility. This
represents a respectful appreciation that a wide range of specialized decision-makers render

decisions in their respective spheres of expertise, using concepts and language often unique to
their areas and rendering decision that are often counter-intuitive to a generalist. Dunsmuir does
not stand for the proposition that the adequacy of reasons is a stand-alone basis for quashing a
decision, or as advocating that a reviewing court undertake two discrete analyses one for the
reasons and a separate one for the result. It is a more organic exercise the reasons must be
read together with the outcome, and serve the purpose of showing whether the result falls within
a range of possible outcomes. Reasons need not include all the arguments or details the
reviewing judge would have preferred, but that does not impugn the validity of either the reasons
or the result. If the reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met. It is an unhelpful elaboration on Baker to suggest that
alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of
procedural fairness. Any challenge to the reasoning/result of the decision should be made within
the reasonableness analysis. Here, the reasons showed that the arbitrator was alive to the
question at issue and came to a result well within the range of reasonable outcomes.
Slaight v. Davidson (SCC, 1991)
Respondent had been employed by appellant as a "radio time salesman" for three and a half
years when he was dismissed on the ground that his performance was inadequate. Respondent
filed a complaint and an adjudicator appointed by the Minister of Labour under s. 61.5(6) of the
Canada Labour Code held that respondent had been unjustly dismissed. Based on s. 61.5(9)(c)
of the Code, the adjudicator made an initial order imposing on appellant an obligation to give
respondent a letter of recommendation certifying (1) that he had been employed by the radio
station from June 1980 to January 20, 1984; (2) the sales quotas he had been set and the amount
of sales he actually made during this period; and (3) that an adjudicator had held that he was
unjustly dismissed. The order specifically indicated the amounts to be shown as sales quotas and
as sales actually made. A second order prohibited appellant from answering a request for
information about respondent except by sending the letter of recommendation. The Federal
Court of Appeal dismissed an application by appellant to review and set aside the adjudicator's
decision. The purpose of the appeal at bar is to determine whether s. 61.5(9)(c) of the Code
authorizes an adjudicator to make such orders; and in particular, whether the orders infringed
appellant's freedom of expression guaranteed by s. 2 (b) of the Canadian Charter of Rights and
Freedoms .
Held (Beetz J. dissenting and Lamer J. dissenting in part): The appeal should be dismissed.
The orders infringe s. 2 (b) of the Charter but are justifiable under s. 1 .
The Charter applies to orders made by the adjudicator. The adjudicator is a creature of
statute. He is appointed pursuant to a legislative provision and derives all his powers from
statute. The Constitution is the supreme law of Canada, and any law that is inconsistent with its
provisions is, to the extent of the inconsistency, of no force or effect. It is thus impossible to
interpret legislation conferring discretion as conferring a power to infringe the Charter , unless,
of course, that power is expressly conferred or necessarily implied. Such an interpretation would
require this Court to declare the legislation to be of no force or effect, unless it could be justified

under s. 1 of the Charter . It follows that an adjudicator, who exercises delegated powers, does
not have the power to make an order that would result in an infringement of the Charter .
The word "like" in the English version of s. 61.5(9) (c) of the Canada Labour Code does not
have the effect of limiting the powers conferred on the adjudicator by allowing him to make only
orders similar to the orders expressly mentioned in paras. (a) and (b) of that subsection.
Interpreting this provision in this way would mean applying the ejusdem generis rule. It is
impossible to apply this rule in the case at bar since one of the conditions essential for its
application -- the presence of a common characteristic or common genus -- has not been met.
The interpretation according to which the word "like" in the English version of para. (c) does not
have the effect of limiting the general power conferred on the adjudicator is also more consistent
with the general scheme of the Code, and in particular with the purpose of Division V.7, which is
to give non-unionized employees a means of challenging a dismissal they feel to be unjust and at
the same time to equip the adjudicator with the powers necessary to remedy the consequences of
such a dismissal.
Per Dickson C.J. and Wilson, La Forest and L'Heureux-Dub JJ.: The adjudicator's orders
were reasonable in the administrative law sense. Administrative law unreasonableness, as a
preliminary standard of review, should not impose a more onerous standard upon government
than would Charter review. While patent unreasonableness is important to maintain for
questions untouched by the Charter , such as review of determinations of fact, in the realm of
value inquiry the courts should have recourse to this standard only in the clearest of cases in
which a decision could not be justified under s. 1 of the Charter .
The adjudicator's first order infringed s. 2 (b) of the Charter but is saved under s. 1 .
The adjudicator's second order also infringed s. 2 (b) of the Charter . It was an attempt to
prevent the appellant from expressing its opinion as to the respondent's qualifications beyond the
facts set out in the letter. But this order, too, was justifiable under s. 1 . First, the objective was
of sufficient importance to warrant overriding appellant's freedom of expression. Like the first
order, the objective of the second order was to counteract the effects of the unjust dismissal by
enhancing the ability of the employee to seek new employment without being lied about by the
previous employer. The adjudicator's remedy was a legislatively-sanctioned attempt to remedy
the unequal balance of power that normally exists between an employer and employee. The
governmental objective, in a general sense, was that of protection of a particularly vulnerable
group, or members thereof. To constitutionally protect freedom of expression in this case would
be tantamount to condoning the continuation of an abuse of an already unequal relationship.
Second, the means chosen were reasonable. Like the first order, the second order was rationally
linked to the objective. With the proven history of promoting a fabricated version of the quality
of respondent's service and the concern that the employer would continue to treat him unfairly if
he went back to work for the employer, it was rational for the adjudicator to attach a rider to the
order for a reference letter so as to ensure that the employer's representatives did not subvert the
effect of the letter by unjustifiably maligning its previous employee in the guise of giving a
reference. Further, no less intrusive measure could have been taken and still achieved the
objective with any likelihood. Monetary compensation would not have been an acceptable
substitute because it would only have been compensation for the economic, not the personal,

effects of unemployment. Labour should not be treated as a commodity and every day without
work as exhaustively reducible to some pecuniary value. The letter was tightly and carefully
designed to reflect only a very narrow range of facts which were not really contested. The
appellant was not forced to state opinions which were not its own. The prohibition was also very
circumscribed. It was triggered only in cases when the appellant was contacted for a reference
and there was no requirement to send the letter to anyone other then prospective employers. In
short, the adjudicator went no further than was necessary to achieve the objective. Finally, the
effects of the measures were not so deleterious as to outweigh the objective of the measures. The
objective in this case was a very important one, especially in light of Canada's international
treaty commitment to protect the right to work in its various dimensions. For purposes of this
final stage of the proportionality inquiry, the fact that a value has the status of an international
human right, either in customary international law under a treaty to which Canada is a State
Party, should generally be indicative of a high degree of importance attached to that objective.
Per Lamer J. (dissenting in part): The adjudicator did not exceed his jurisdiction by ordering
appellant to give respondent a letter of recommendation with a specified content. Apart from the
Charter , the only limitation imposed by s. 61.5(9) (c) is that the order must be designed to
"remedy or counteract any consequence of the dismissal". That is the case here. The order
prevents appellant's decision to dismiss respondent from having negative consequences for the
latter's chances of finding new employment. Ordering an employer to give a former employee a
letter of recommendation containing only objective facts that are not in dispute is not as such
unreasonable and there is nothing to indicate that the adjudicator was pursuing an improper
objective or acting in bad faith or in a discriminatory manner.
However, the adjudicator exceeded his jurisdiction by prohibiting appellant from answering a
request for information about respondent other than by sending the letter of recommendation.
Though the order is also meant to remedy or counteract the consequences of the dismissal, its
effect, by prohibiting appellant from adding any comments whatever, is to create circumstances
in which the letter could be seen as the expression of appellant's opinions. This type of penalty is
totalitarian and as such alien to the tradition of free nations like Canada. Parliament therefore
cannot have intended to authorize such an unreasonable use of the discretion conferred by it.
The adjudicator lost this jurisdiction when he made a patently unreasonable order.
The first order limits appellant's freedom of expression but this limitation, which is prescribed
by law -- the order made by the adjudicator is only an exercise of the discretion conferred on him
by statute -- can be justified under s. 1 of the Charter . The purpose of the order is clearly, as
required by the Code, to counteract the consequences of the unjust dismissal. Such an objective
is sufficiently important to warrant a limitation on freedom of expression. It is essential for the
legislator to provide mechanisms to restore equilibrium in employer/employee relations so the
employee will not be subject to arbitrary action by the employer. Additionally, the means chosen
to attain the objective are reasonable in the circumstances. The order is fair and was carefully
designed. The purpose of the letter of recommendation is to correct the false impression given
by the fact of the dismissal and it contains only facts that are not in dispute. It is rationally
connected to the dismissal since in certain cases it is the only way of effectively remedying the
consequences of the dismissal. Finally, the consequences of the order are proportional to the
objective sought. The latter is important in our society. The limitation on freedom of expression

is not what could be described as very serious. It does not abolish that freedom, but simply
limits its exercise by requiring the employer to write something determined in advance.
Per Beetz J. (dissenting): Except for the attestation relating to the unjust dismissal, the first
order violated the appellant's freedoms of opinion and of expression and could not be justified
under s. 1 of the Charter . This order forced the employer to write, as if they were his own,
statements of facts in which, rightly or wrongly, he may not believe, or which he may ultimately
find or think to be inaccurate, misleading or false. In short, the order may force the appellant to
lie. To order the affirmation of facts, apart from belief in their veracity by the person who is
ordered to affirm them constitutes a prima facie violation of the freedoms of opinion and
expression. Such a violation was totalitarian in nature and could never be justified under s. 1 of
the Charter .
The second order, coupled with the first, also violated the former employer's freedoms of
opinion and of expression in a manner which was not justified under s. 1 of the Charter . The
sending of the letter as drafted by the adjudicator, coupled with the prohibition to say or write
anything else could lead to the implication that the former employer had no further comment to
make upon the performance of the respondent and that, accordingly, the letter reflected the
opinion of the former employer. In any event, the second order was disproportionate and
unreasonable. One should view with extreme suspicion an administrative order or even a
judicial order which has the effect of preventing the litigants from commenting upon and even
criticizing the rulings of the deciding board or court.
Further, in cases of unjust dismissal, the issuance by an adjudicator of a blanket and perpetual
prohibition against a former employer to write or say anything to a prospective employer but
what the adjudicator has dictated in the letter of recommendation can lead to absurd and even
counter-productive results. The adjudicator cannot foresee all the possible types of exchanges
which are susceptible to occur between former and prospective employers. The absurdity which
results from the adjudicator's second order is sufficient to warrant its reversal. If it is
disproportionate and unreasonable from a practical point of view, then it has to be unreasonable
from an administrative law point of view and it is difficult to conceive how it could be
reasonable within the meaning of s. 1 of the Charter .
Multani v. Marguerite-Bourgeoys S.B. (SCC, 2006)
G and his father B are orthodox Sikhs. G believes that his religion requires him to wear a kirpan
at all times; a kirpan is a religious object that resembles a dagger and must be made of metal. In
2001, G accidentally dropped the kirpan he was wearing under his clothes in the yard of the
school he was attending. The school board sent Gs parents a letter in which, as a reasonable
accommodation, it authorized their son to wear his kirpan to school provided that he complied
with certain conditions to ensure that it was sealed inside his clothing. G and his parents agreed
to this arrangement. The governing board of the school refused to ratify the agreement on the
basis that wearing a kirpan at the school violated art. 5 of the schools Code de vie (code of
conduct), which prohibited the carrying of weapons. The school boards council of
commissioners upheld that decision and notified G and his parents that a symbolic kirpan in the

form of a pendant or one in another form made of a material rendering it harmless would be
acceptable in the place of a real kirpan. B then filed in the Superior Court a motion for a
declaratory judgment to the effect that the council of commissioners decision was of no force or
effect. The Superior Court granted the motion, declared the decision to be null, and authorized G
to wear his kirpan under certain conditions. The Court of Appeal set aside the Superior Courts
judgment. After deciding that the applicable standard of review was reasonableness simpliciter,
the Court of Appeal restored the council of commissioners decision. It concluded that the
decision in question infringed Gs freedom of religion under s. 2 (a) of the Canadian Charter of
Rights and Freedoms (Canadian Charter ) and s. 3 of Quebecs Charter of human rights and
freedoms (Quebec Charter), but that the infringement was justified for the purposes of s. 1 of
the Canadian Charter and s. 9.1 of the Quebec Charter.
Held: The appeal should be allowed. The decision of the Court of Appeal should be set aside
and the decision of the council of commissioners should be declared to be null.
Per McLachlin C.J. and Bastarache, Binnie, Fish and Charron JJ.: In the case at bar, it is the
compliance of the commissioners decision with the requirements of the Canadian Charter that
is central to the dispute, not the decisions validity from the point of view of administrative law.
There is no suggestion that the council of commissioners did not have jurisdiction, from an
administrative law standpoint, to approve the Code de vie. Nor is the administrative and
constitutional validity of the rule against carrying weapons in issue. Since the complaint is based
entirely on freedom of religion, the Court of Appeal erred in applying the reasonableness
standard to its constitutional analysis. The administrative law standard of review was not
relevant. [18-20]
The Canadian Charter applies to the decision of the council of commissioners, despite the
decisions individual nature. Any infringement of a guaranteed right that results from the actions
of a decision maker acting pursuant to its enabling statute is also a limit prescribed by law
within the meaning of s. 1 . Where the legislation pursuant to which an administrative body has
made a contested decision confers a discretion and does not confer, either expressly or by
implication, the power to limit the rights and freedoms guaranteed by the Canadian Charter , the
decision should, if there is an infringement, be subjected to the test set out in s. 1 to ascertain
whether it constitutes a reasonable limit. [22-23]
In the instant case, the Court does not at the outset have to reconcile two constitutional rights, as
only freedom of religion is in issue here. However, that freedom is not absolute and can conflict
with other constitutional rights. Since the test governing limits on rights was developed in
Oakes, the Court has never called into question the principle that rights are reconciled through
the constitutional justification required by s. 1 of the Canadian Charter . Since the decision
genuinely affects both parties and was made by an administrative body exercising statutory
powers, a contextual analysis under s. 1 will make it possible to balance the relevant competing
values in a more comprehensive manner. [29-30]
The council of commissioners decision prohibiting G from wearing his kirpan to school
infringes his freedom of religion. G genuinely believes that he would not be complying with the
requirements of his religion were he to wear a plastic or wooden kirpan, and none of the parties

have contested the sincerity of his belief. The interference with Gs freedom of religion is
neither trivial nor insignificant, as it has deprived him of his right to attend a public school. The
infringement of Gs freedom of religion cannot be justified under s. 1 of the Canadian Charter .
Although the councils decision to prohibit the wearing of a kirpan was motivated by a pressing
and substantial objective, namely to ensure a reasonable level of safety at the school, and
although the decision had a rational connection with the objective, it has not been shown that
such a prohibition minimally impairs Gs rights. [2] [38-41] [44] [48] [77]
The analogy with the duty of reasonable accommodation is helpful to explain the burden
resulting from the minimal impairment test with respect to an individual. In the circumstances of
the instant case, the decision to establish an absolute prohibition against wearing a kirpan does
not fall within a range of reasonable alternatives. The arguments in support of such a prohibition
must fail. The risk of G using his kirpan for violent purposes or of another student taking it away
from him is very low, especially if the kirpan is worn under conditions such as were imposed by
the Superior Court. It should be added that G has never claimed a right to wear his kirpan to
school without restrictions. Furthermore, there are many objects in schools that could be used to
commit violent acts and that are much more easily obtained by students, such as scissors, pencils
and baseball bats. The evidence also reveals that not a single violent incident related to the
presence of kirpans in schools has been reported. Although it is not necessary to wait for harm to
be done before acting, the existence of concerns relating to safety must be unequivocally
established for the infringement of a constitutional right to be justified. Nor does the evidence
support the argument that allowing G to wear his kirpan to school could have a ripple effect.
Lastly, the argument that the wearing of kirpans should be prohibited because the kirpan is a
symbol of violence and because it sends the message that using force is necessary to assert rights
and resolve conflict is not only contradicted by the evidence regarding the symbolic nature of the
kirpan, but is also disrespectful to believers in the Sikh religion and does not take into account
Canadian values based on multiculturalism. Religious tolerance is a very important value of
Canadian society. If some students consider it unfair that G may wear his kirpan to school while
they are not allowed to have knives in their possession, it is incumbent on the schools to
discharge their obligation to instil in their students this value that is at the very foundation of our
democracy. A total prohibition against wearing a kirpan to school undermines the value of this
religious symbol and sends students the message that some religious practices do not merit the
same protection as others. Accommodating G and allowing him to wear his kirpan under certain
conditions demonstrates the importance that our society attaches to protecting freedom of
religion and to showing respect for its minorities. The deleterious effects of a total prohibition
thus outweigh its salutary effects. [51-54] [57-59] [67-71] [76] [79]
Given that G no longer attends his school, the appropriate and just remedy is to declare the
decision prohibiting him from wearing his kirpan to be null. [82]
Per Deschamps and Abella JJ.: Recourse to a constitutional law justification is not appropriate
where, as in this case, what must be assessed is the propriety of an administrative bodys decision
relating to human rights. Whereas a constitutional justification analysis must be carried out
when reviewing the validity or enforceability of a norm such as a law, regulation or other similar
rule of general application, the administrative law approach must be retained for reviewing

decisions and orders made by administrative bodies. Basing the analysis on the principles of
administrative law not only averts the problems that result from blurring the distinction between
the principles of constitutional justification and the principles of administrative law, but also
prevents the impairment of the analytical tools developed specifically for each of these fields. In
addition, this approach allows parties and administrative bodies to know in advance which rules
govern disputes involving human rights issues. [85] [103] [125]
Simply alleging that a s. 1 analysis is required does not make administrative law inapplicable. If
an administrative body makes a decision or order that is said to conflict with fundamental values,
the mechanisms of administrative law including the standard of review are readily
available. It is difficult to conceive of an administrative decision being permitted to stand if it
violates the Canadian Charter . [86] [93] [128]
A decision or order made by an administrative body cannot be equated with a law within the
meaning of s. 1 of the Canadian Charter . The expression law used in s. 1 naturally refers to
a norm or rule of general application. The Oakes test, which was developed to assess legislative
policies, is based on the duty of the executive and legislative branches of government to account
to the courts for any rules they establish that infringe protected rights. That test, which is based
on an analysis of societal interests, is better suited, conceptually and literally, to the concept of
prescribed by law. The duty to account imposed conceptually and in practice on the
legislative and executive branches is not easily applied to administrative tribunals. [112-113]
[119-121]
Lastly, even if the concepts of reasonable accommodation and minimal impairment have a
number of similarities, they belong to two different analytical categories. On the one hand, the
process required by the duty of reasonable accommodation takes into account the specific details
of the circumstances of the parties. The justification of minimal impairment, on the other hand,
is based on societal interests. An administrative law analysis is microcosmic, whereas a
constitutional law analysis is generally macrocosmic. These separate streams public versus
individual should be kept distinct. [129-134]
In the instant case, it is the standard of reasonableness that applies to the decision of the school
boards council of commissioners. The council did not sufficiently consider either the right to
freedom of religion or the proposed accommodation measure. It merely applied literally the
Code de vie in effect at the school. By disregarding the right to freedom of religion without
considering the possibility of a solution that posed little or no risk to the safety of the school
community, the council made an unreasonable decision. [99]
Per LeBel J.: It is not always necessary to resort to the Canadian Charter or, in the case of
Quebec, the Quebec Charter when a decision can be reached by applying general administrative
law principles or the specific rules governing the exercise of a delegated power. However, the
dispute as presented makes a constitutional analysis unavoidable. Where a decision is contested
on the basis that the administrative bodys exercise of the delegated power is vitiated by the
violation of a fundamental right, the only way to determine whether the infringement of the
constitutional standard is justified is to consider the fundamental rights in issue and how they

have been applied. Where the exercise of such a power has an impact on the relationship
between competing constitutional rights, those rights can be reconciled in two ways. The first
approach involves defining the rights and how they relate to each other, and the second consists
of justification under s. 1 of the Canadian Charter . In the case at bar, the first approach can be
dispensed with, as the evidence does not show a prima facie infringement of the right to security
of the person. It is therefore necessary to turn to justification under s. 1 . In the case of an
individualized decision made pursuant to statutory authority, it may be possible to dispense with
certain steps of the analysis. The existence of a statutory authority that is not itself challenged
makes it pointless to review the objectives of the act. The issue becomes one of proportionality
or, more specifically, minimal limitation of the guaranteed right, having regard to the context in
which the right has been infringed. Reasonable accommodation that would meet the
requirements of the constitutional standard must be considered at this stage and in this context.
In the case at bar, the school board has not shown that its prohibition was justified and met the
constitutional standard. [141-144] [153-155]
Dore v. Barreau de Quebec (SCC, 2012),
D appeared before a judge of the Superior Court of Quebec on behalf of a client. In the course of
Ds argument, the judge criticized D. In his written reasons rejecting Ds application, the judge
levied further criticism, accusing D of using bombastic rhetoric and hyperbole, of engaging in
idle quibbling, of being impudent and of doing nothing to help his client discharge his burden. D
then wrote a private letter to the judge calling him loathsome, arrogant and fundamentally unjust,
and accusing him of hiding behind his status like a coward, of having a chronic inability to
master any social skills, of being pedantic, aggressive and petty, and of having a propensity to
use his court to launch ugly, vulgar and mean personal attacks.
The Assistant Syndic of the Barreau du Qubec filed a complaint against D based on
that letter alleging that D had violated art. 2.03 of the Code of ethics of advocates, which states
that the conduct of advocates must bear the stamp of objectivity, moderation and dignity. The
Disciplinary Council of the Barreau du Qubec found that the letter was likely to offend, rude
and insulting, that the statements had little expressive value, and that the judges conduct, which
resulted in a reprimand from the Canadian Judicial Council, could not be relied on as
justification for it. The Council rejected Ds argument that art. 2.03 violated s. 2 (b) of the
Canadian Charter of Rights and Freedoms , finding that the limitation on freedom of expression
was reasonable. Based on the seriousness of Ds conduct, the Council reprimanded D and
suspended his ability to practice law for 21 days. On appeal to the Tribunal des professions, D
abandoned his constitutional challenge to the specific provision, arguing instead that the sanction
itself violated his freedom of expression. The Tribunal found that D had exceeded the
objectivity, moderation and dignity expected of him and that the decision to sanction D was a
minimal restriction on his freedom of expression. On judicial review, the Superior Court of
Quebec upheld the decision of the Tribunal.
Before the Quebec Court of Appeal, D no longer appealed the actual sanction of 21
days, challenging only the decision to reprimand him as a violation of the Charter . The Court of
Appeal applied a full Oakes analysis under s. 1 of the Charter and upheld the reprimand. It

found that Ds letter had limited importance compared to the values underlying freedom of
expression, that the Councils decision had a rational connection to the important objective of
protecting the public and that the effects of the decision were proportionate to its objectives.
Held: The appeal from the result should be dismissed.
To determine whether administrative decision-makers have exercised their statutory
discretion in accordance with Charter protections, the review should be in accordance with an
administrative law approach, not a s. 1 Oakes analysis. The standard of review is
reasonableness.
In assessing whether a law violates the Charter , we are balancing the governments
pressing and substantial objectives against the extent to which they interfere with the Charter
right at issue. If the law interferes with the right no more than is reasonably necessary to achieve
the objectives, it will be found to be proportionate, and, therefore, a reasonable limit under s. 1 .
But in assessing whether an adjudicated decision violates the Charter , we are engaged in
balancing somewhat different but related considerations, namely, has the decision-maker
disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are
looking for whether there is an appropriate balance between rights and objectives, and the
purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.
There is nothing in the administrative law approach which is inherently inconsistent
with the strong protection of the Charter s guarantees and values. An administrative law
approach recognizes that administrative decision-makers are both bound by fundamental values
and empowered to adjudicate them, and that administrative discretion is exercised in light of
constitutional guarantees and the values they reflect. An administrative decision-maker
exercising a discretionary power under his or her home statute, has, by virtue of expertise and
specialization, particular familiarity with the competing considerations at play in weighing
Charter values and will generally be in the best position to consider the impact of the relevant
Charter guarantee on the specific facts of the case. Under a robust conception of administrative
law, discretion is exercised in light of constitutional guarantees and the values they reflect.
When applying Charter values in the exercise of statutory discretion, an
administrative decision-maker must balance Charter values with the statutory objectives by
asking how the Charter value at issue will best be protected in light of those objectives. This is
at the core of the proportionality exercise, and requires the decision-maker to balance the
severity of the interference of the Charter protection with the statutory objectives.
On judicial review, the question becomes whether, in assessing the impact of the
relevant Charter protection and given the nature of the decision and the statutory and factual
contexts, the decision reflects a proportionate balancing of the Charter rights and values at play.
Though this judicial review is conducted within the administrative framework, there is
nonetheless conceptual harmony between a reasonableness review and the Oakes framework,
since both contemplate giving a margin of appreciation, or deference, to administrative and
legislative bodies in balancing Charter values against broader objectives. In the Charter
context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring

that the decision interferes with the relevant Charter guarantee no more than is necessary given
the statutory objectives. If the decision is disproportionately impairing of the guarantee, it is
unreasonable. If, on the other hand, it reflects a proper balance of the mandate with Charter
protection, it is a reasonable one. But both decision-makers and reviewing courts must remain
conscious of the fundamental importance of Charter values in the analysis.
Here, the decision to suspend D for 21 days was not before the Court. The only issue
was whether the Councils decision to reprimand D reflected a proportionate balancing of the
lawyers expressive rights with its statutory mandate to ensure that lawyers behave with
objectivity, moderation and dignity in accordance with art. 2.03 of the Code of ethics. In
dealing with the appropriate boundaries of civility for a lawyer, the severity of the conduct must
be interpreted in light of the expressive rights guaranteed by the Charter , and, in particular, the
public benefit in ensuring the right of lawyers to express themselves about the justice system in
general and judges in particular. We are, in other words, balancing the fundamental importance
of open, and even forceful, criticism of our public institutions with the need to ensure civility in
the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to
the importance of the expressive rights at issue, both in light of an individual lawyers right to
expression and the publics interest in open discussion. As with all disciplinary decisions, this
balancing is a fact-dependent and discretionary exercise.
Proper respect for these expressive rights may involve disciplinary bodies tolerating
a degree of discordant criticism. The fact that a lawyer is criticizing a judge, a tenured and
independent participant in the justice system, may raise, not lower, the threshold for limiting a
lawyers expressive rights under the Charter . This does not, however, argue for an unlimited
right on the part of lawyers to breach the legitimate public expectation that they will behave with
civility. Lawyers potentially face criticisms and pressures on a daily basis. They are expected by
the public, on whose behalf they serve, to endure them with civility and dignity. This is not
always easy where the lawyer feels he or she has been unfairly provoked, as in this case. But it
is precisely when a lawyers equilibrium is unduly tested that he or she is particularly called
upon to behave with transcendent civility. On the other hand, lawyers should not be expected to
behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably
have a duty to do so. But they are constrained by their profession to do so with dignified
restraint.
A reprimand for a lawyer does not automatically flow from criticizing a judge or the
judicial system. Such criticism, even when it is expressed vigorously, can be constructive.
However in the context of disciplinary hearings, such criticism will be measured against the
publics reasonable expectations of a lawyers professionalism. As the Disciplinary Council
found, Ds letter was outside those expectations. His displeasure with the judge was justifiable,
but the extent of the response was not.
In light of the excessive degree of vituperation in the letters context and tone, the
Councils decision that Ds letter warranted a reprimand represented a proportional balancing of
Ds expressive rights with the statutory objective of ensuring that lawyers behave with
objectivity, moderation and dignity. The decision is, as a result, a reasonable one.

Martin & Laseur v. Nova Scotia (W.C.B.) (SCC, 2003)

The appellants, L and M, both suffer from the disability of chronic pain attributable to a workrelated injury. M worked as a foreman and sustained a lumbar sprain. In the following months,
he returned to work several times, but recurring pain required him to stop. He attended a work
conditioning and hardening program. During this period, the Workers Compensation Board of
Nova Scotia provided him with temporary disability benefits and rehabilitation services. When
his temporary benefits were discontinued, M sought review of this decision, but his claim was
denied by the Board. L was employed as a bus driver and injured her back and her right hand
when she slipped and fell from the bumper of her bus. She received temporary disability
benefits. Although L attempted to return to work on several occasions, she found that
performing her duties aggravated her condition. She was denied a permanent partial disability
award and vocational rehabilitation assistance. M and L appealed the Boards decisions to the
Workers Compensation Appeals Tribunal on the ground that the Functional Restoration (MultiFaceted Pain Services) Program Regulations and portions of s. 10B of the Workers
Compensation Act infringed s. 15(1) of the Canadian Charter of Rights and Freedoms . These
provisions exclude chronic pain from the purview of the regular workers compensation system
and provide, in lieu of the benefits normally available to injured workers, a four-week Functional
Restoration Program beyond which no further benefits are available. The Board challenged the
Appeals Tribunals jurisdiction to hear the Charter argument.
The Appeals Tribunal affirmed its jurisdiction to apply the Charter and allowed Ms appeal on
the merits, holding that the Regulations and s. 10B(c) of the Act violated s. 15 of the Charter
and that these violations were not justified under s. 1 . M was awarded temporary benefits from
August 6 to October 15, 1996. In Ls appeal, the Appeals Tribunal concluded, based on the
reasons given in Ms appeal, that s. 10A and s. 10B(b) and (c) of the Act also violated s. 15(1) of
the Charter and were not saved by s. 15(2) or s. 1 ; however, the Appeals Tribunal found that
while L suffered from chronic pain attributable to her work injury, her permanent medical
impairment rating under the applicable guidelines was 0 percent, thus barring her from obtaining
permanent impairment or vocational rehabilitation. The Board appealed the Appeals Tribunals
Charter conclusions, M cross-appealed the cut-off of benefits as of October 15, 1996, and L
cross-appealed the refusal to award benefits. The Court of Appeal allowed the Boards appeals
and dismissed the cross-appeals. The court found that the Appeals Tribunal did not have
jurisdiction to consider the constitutional validity of the Act and that, in any event, the chronic
pain provisions did not demean the human dignity of the claimants and thus did not violate s.
15(1) of the Charter .
Held: The appeals should be allowed. Section 10B of the Act and the Regulations in their
entirety infringe s. 15(1) of the Charter and the infringement is not justified under s. 1 . The
challenged provisions are of no force or effect by operation of s. 52(1) of the Constitution Act,
1982 . The general declaration of invalidity is postponed for six months from the date of this
judgment. In Ms case, the decision rendered by the Appeals Tribunal is reinstated. Ls case is
returned to the Board.

The Constitution is the supreme law of Canada and, by virtue of s. 52(1) of the Constitution Act,
1982 , the question of constitutional validity inheres in every legislative enactment. From this
principle of constitutional supremacy flows, as a practical corollary, the idea that Canadians
should be entitled to assert the rights and freedoms that the Constitution guarantees them in the
most accessible forum available, without the need for parallel proceedings before the courts. To
allow an administrative tribunal to decide Charter issues does not undermine the role of the
courts as final arbiters of constitutionality in Canada. Administrative tribunal decisions based on
the Charter are subject to judicial review on a correctness standard. In addition, the
constitutional remedies available to administrative tribunals are limited and do not include
general declarations of invalidity. A determination by a tribunal that a provision of its enabling
statute is invalid pursuant to the Charter is not binding on future decision-makers, within or
outside the tribunals administrative scheme. Only by obtaining a formal declaration of
invalidity by a court can a litigant establish the general invalidity of a legislative provision for all
future cases.
The Court of Appeal erred in concluding that the Appeals Tribunal did not have jurisdiction to
consider the constitutionality of the challenged provisions of the Act and the Regulations.
Administrative tribunals which have jurisdiction, explicit or implied, to decide questions of law
arising under a legislative provision are presumed to have concomitant jurisdiction to decide the
constitutional validity of that provision. In applying this approach, there is no need to draw any
distinction between general and limited questions of law. Explicit jurisdiction must be found
in the terms of the statutory grant of authority. Implied jurisdiction must be discerned by looking
at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in
issue and whether deciding questions of law is necessary to fulfilling this mandate effectively;
the interaction of the tribunal in question with other elements of the administrative system;
whether the tribunal is adjudicative in nature; and practical considerations, including the
tribunals capacity to consider questions of law. Practical considerations, however, cannot
override a clear implication from the statute itself. The party alleging that the tribunal lacks
jurisdiction to apply the Charter may rebut the presumption by pointing to an explicit
withdrawal of authority to consider the Charter ; or by convincing the court that an examination
of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the
Charter (or a category of questions that would include the Charter , such as constitutional
questions generally) from the scope of the questions of law to be addressed by the tribunal. Such
an implication should generally arise from the statute itself, rather than from external
considerations. To the extent that Cooper v. Canada (Human Rights Commission), [1996] 3
S.C.R. 854, is inconsistent with this approach, it should no longer be relied upon.
The Appeals Tribunal could properly consider and decide the Charter issue raised in this case.
The legislature expressly conferred on the Appeals Tribunal the authority to decide questions of
law by providing, in s. 252(1) of the Act, that it may confirm, vary or reverse the decision of a
hearing officer exercising the authority conferred upon the Board by s. 185(1) of the Act to
determine all questions of fact and law arising pursuant to this Part. Other provisions of the
Act also confirm the legislatures intention that the Appeals Tribunal decide questions of law,
including s. 256(1) , which provides for a further appeal to the Court of Appeal on any question
of law. This suggests that the Appeals Tribunal may deal initially with such questions. The

Appeals Tribunal thus has explicit jurisdiction to decide questions of law arising under the
challenged provisions, a jurisdiction which is presumed to include the authority to consider their
constitutional validity. This presumption is not rebutted in this case, as there is no clear
implication arising from the Act that the legislature intended to exclude the Charter from the
scope of the Appeals Tribunals authority. Even if there had been no express provision endowing
the Appeals Tribunal with authority to consider and decide questions of law arising under the
Act, an examination of the statutory scheme set out by the Act would lead to the conclusion that
it has implied authority to do so.
The Court of Appeal also erred in concluding that the challenged provisions of the Act and the
Regulations did not infringe s. 15(1) of the Charter . The appropriate comparator group for the
s. 15(1) analysis in this case is the group of workers subject to the Act who do not have chronic
pain and are eligible for compensation for their employment-related injuries. By entirely
excluding chronic pain from the application of the general compensation provisions of the Act
and limiting the applicable benefits to a four-week Functional Restoration Program for workers
injured after February 1, 1996, the Act and the Regulations clearly impose differential treatment
upon injured workers suffering from chronic pain on the basis of the nature of their physical
disability, an enumerated ground under s. 15(1) of the Charter . The view that since both the
claimants and the comparator group suffer from physical disabilities, differential treatment of
chronic pain within the workers compensation scheme is not based on physical disability must
be rejected. Differential treatment can occur on the basis of an enumerated ground despite the
fact that not all persons belonging to the relevant group are equally mistreated. Distinguishing
injured workers with chronic pain from those without is still a disability-based distinction.
Although, under the current guidelines, L would be found to have a 0 percent impairment rating
and would thus be denied benefits anyway, deprivation of access to an institution available to
others, even though the individual bringing the claim would not necessarily derive immediate
benefits from such access, constitutes differential treatment. In the context of the Act, and given
the nature of chronic pain, the differential treatment is discriminatory. It is discriminatory
because it does not correspond to the actual needs and circumstances of injured workers
suffering from chronic pain, who are deprived of any individual assessment of their needs and
circumstances. Such workers are, instead, subject to uniform, limited benefits based on their
presumed characteristics as a group. The scheme also ignores the needs of those workers who,
despite treatment, remain permanently disabled by chronic pain. Nothing indicates that the
scheme is aimed at improving the circumstances of a more disadvantaged group, or that the
interests affected are merely economic or otherwise minor. On the contrary, the denial of the
reality of the pain suffered by the affected workers reinforces widespread negative assumptions
held by employers, compensation officials and some members of the medical profession. A
reasonable person in circumstances similar to those of L and M, fully apprised of all the relevant
circumstances and taking into account the relevant contextual factors, would conclude that the
challenged provisions have the effect of demeaning the dignity of chronic pain sufferers.
The infringement of Ls and Ms equality rights cannot be justified under s. 1 of the Charter .
The first objective of maintaining the financial viability of the Accident Fund is not pressing and
substantial. Budgetary considerations in and of themselves cannot justify violating a Charter
right, although they may be relevant in determining the appropriate degree of deference to
governmental choices based on a non-financial objective. Likewise, the second objective of

developing a consistent legislative response to chronic pain claims cannot stand on its own.
Mere administrative expediency or conceptual elegance cannot be sufficiently pressing and
substantial to override a Charter right. This objective only becomes meaningful when examined
with the third objective of avoiding fraudulent claims based on chronic pain. Developing a
consistent legislative response to the special issues raised by chronic pain claims such as
determining whether the pain is actually caused by the work-related accident and assessing the
relevant degree of impairment in order to avoid fraudulent claims is a pressing and substantial
objective. The challenged provisions of the Act and the Regulations are rationally connected to
this objective. It is obvious, however, that the blanket exclusion of chronic pain from the
workers compensation system does not minimally impair the rights of chronic pain sufferers.
The challenged provisions make no attempt whatsoever to determine who is genuinely suffering
and needs compensation, and who may be abusing the system. They ignore the very real needs
of the many workers who are in fact impaired by chronic pain and whose condition is not
appropriately remedied by the four-week Functional Restoration Program. The fourth objective
is to implement early medical intervention and return to work as the optimal treatment for
chronic pain. Assuming that this objective is pressing and substantial and that the challenged
provisions are rationally connected to it, they do not minimally impair the rights of chronic pain
sufferers. No evidence indicates that an automatic cut-off of benefits regardless of individual
needs is necessary to achieve that goal. This is particularly true with respect to ameliorative
benefits which would actually facilitate return to work, such as vocational rehabilitation, medical
aid and the rights to re-employment and accommodation. Moreover, the legislation deprives
workers whose chronic pain does not improve as a result of early medical intervention and who
return to work from receiving any benefits beyond the four-week Functional Restoration
Program. Others, like L, are not even admissible to this program because of the date of their
injuries. The deleterious effects of the challenged provisions on these workers clearly outweigh
their potential beneficial effects.
R. v. Conway, (SCC, 2010)
In 1984, C was found not guilty by reason of insanity on a charge of sexual assault with a
weapon. Since the verdict, he has been detained in mental health facilities and diagnosed with
several mental disorders. Prior to his annual review hearing before the Ontario Review Board in
2006, C alleged that the mental health centre where he was being detained had breached his
rights under the Canadian Charter of Rights and Freedoms . He sought an absolute discharge as
a remedy under s. 24(1) of the Charter . The Board unanimously concluded that C was a threat
to public safety, who would, if released, quickly return to police and hospital custody. This made
him an unsuitable candidate for an absolute discharge under s. 672.54 (a) of the Criminal Code ,
which provides that an absolute discharge is unavailable to any patient who is a significant
threat to the safety of the public. The Board therefore ordered that C remain in the mental
health centre. The Board further concluded that it had no jurisdiction to consider Cs Charter
claims. A majority in the Court of Appeal upheld the Boards conclusion that it was not a court
of competent jurisdiction for the purpose of granting an absolute discharge under s. 24(1) of the
Charter . However, the Court of Appeal unanimously concluded that it was unreasonable for the
Board not to address the treatment impasse plaguing Cs detention. This issue was remitted back
to the Board.

Before this Court, the issue is whether the Ontario Review Board has jurisdiction to grant
remedies under s. 24(1) of the Charter . C has requested, in addition to an absolute discharge,
remedies dealing with his conditions of detention: an order directing the mental health centre to
provide him with access to psychotherapy and an order prohibiting the centre from housing him
near a construction site.
Held: The appeal should be dismissed.
When the Charter was proclaimed, its relationship with administrative tribunals was a blank
slate. However, various dimensions of the relationship quickly found their way to this Court.
The first wave of relevant cases started in 1986 with Mills v. The Queen, [1986] 1 S.C.R. 863.
The Mills cases established that a court or administrative tribunal was a court of competent
jurisdiction under s. 24(1) of the Charter if it had jurisdiction over the person, the subject
matter, and the remedy sought. The second wave started in 1989 with Slaight Communications
Inc. v. Davidson, [1989] 1 S.C.R. 1038. The Slaight cases established 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] 3 S.C.R. 570, followed in
1991 by Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and
Ttreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22.
The cases flowing from this trilogy, which deal with s. 52(1) of the Constitution Act, 1982 ,
established that specialized tribunals with both the expertise and the authority to decide questions
of law are in the best position to hear and decide the constitutionality of their statutory
provisions.
This evolution of the case law over the last 25 years has cemented the direct relationship between
the Charter , its remedial provisions and administrative tribunals. It confirms that we do not
have one Charter for the courts and another for administrative tribunals and that, with rare
exceptions, administrative tribunals with the authority to apply the law, have the jurisdiction to
apply the Charter to the issues that arise in the proper exercise of their statutory functions. The
evolution also confirms that expert tribunals should play a primary role in determining Charter
issues that fall within their specialized jurisdiction and that in exercising their statutory functions,
administrative tribunals must act consistently with the Charter and its values.
Moreover, the jurisprudential evolution affirms the practical advantages and the constitutional
basis for allowing Canadians to assert their Charter rights in the most accessible forum
available, without the need for bifurcated proceedings between superior courts and
administrative tribunals. Any scheme favouring bifurcation is, in fact, inconsistent with the
well-established principle that an administrative tribunal is to decide all matters, including
constitutional questions, whose essential factual character falls within the tribunals specialized
statutory jurisdiction.
A merger of the three distinct constitutional streams flowing from this Courts administrative law
jurisprudence calls for a new approach that consolidates this Courts gradual expansion of the
scope of the Charter and its relationship with administrative tribunals. When a Charter remedy
is sought from an administrative tribunal, the initial inquiry should be whether the tribunal can

grant Charter remedies generally. The answer to this question flows from whether the
administrative tribunal has the jurisdiction, explicit or implied, to decide questions of law. If it
does, and unless the legislature has clearly demonstrated its intent to withdraw the Charter from
the tribunals authority, the tribunal will have the jurisdiction to grant Charter remedies in
relation to Charter issues arising in the course of carrying out its statutory mandate. The
tribunal is, in other words, a court of competent jurisdiction under s. 24(1) of the Charter . This
approach has the benefit of attributing Charter jurisdiction to a tribunal as an institution, rather
than requiring litigants to test, remedy by remedy, whether the tribunal is a court of competent
jurisdiction.
Once the initial inquiry has been resolved in favour of Charter jurisdiction, the remaining
question is whether the tribunal can grant the particular remedy sought given its statutory
scheme. Answering this question is necessarily an exercise in discerning legislative intent,
namely, whether the remedy sought is the kind of remedy that the legislature intended would fit
within the statutory framework of the particular tribunal. Relevant considerations include the
tribunals statutory mandate and function.
In this case, C seeks certain Charter remedies from the Board. The first inquiry, therefore, is
whether the Board is a court of competent jurisdiction under s. 24(1) . The answer to this
question depends on whether the Board is authorized to decide questions of law. The Board is a
quasi-judicial body with significant authority over a vulnerable population. It operates under
Part XX.1 of the Criminal Code as a specialized statutory tribunal with ongoing supervisory
jurisdiction over the treatment, assessment, detention and discharge of NCR patients: accused
who have been found not criminally responsible by reason of mental disorder. Part XX.1 of the
Criminal Code provides that any party to a review board hearing may appeal the boards
disposition on a question of law, fact or mixed fact and law. The Code also authorizes appellate
courts to overturn a review boards disposition if it was based on a wrong decision on a question
of law. This statutory language is indicative of the Boards authority to decide questions of law.
Given this conclusion, and since Parliament has not excluded the Charter from the Boards
mandate, it follows that the Board is a court of competent jurisdiction for the purpose of granting
remedies under s. 24(1) of the Charter .
The next question is whether the remedies sought are the kinds of remedies which would fit
within the Boards statutory scheme. This requires consideration of the scope and nature of the
Boards statutory mandate and functions. The review board regime is intended to reconcile the
twin goals of protecting the public from dangerous offenders and treating NCR patients fairly
and appropriately. Based on the Boards duty to protect public safety, its statutory authority to
grant absolute discharges only to non-dangerous NCR patients, and its mandate to assess and
treat NCR patients with a view to reintegration rather than recidivism, it is clear that Parliament
intended that dangerous NCR patients have no access to absolute discharges. C cannot,
therefore, obtain an absolute discharge from the Board. The same is true of Cs request for a
treatment order. Allowing the Board to prescribe or impose treatment is expressly prohibited by
s. 672.55 of the Criminal Code . Finally, neither the validity of Cs complaint about the location
of his room nor, obviously, the propriety of his request for an order prohibiting the mental health
centre from housing him near a construction site, have been considered by the Board. It may
well be that the substance of Cs complaint can be fully addressed within the Boards statutory

mandate and the exercise of its discretion in accordance with Charter values. If so, resort to
s. 24(1) of the Charter may not add to the Boards capacity to either address the substance of
Cs complaint or provide appropriate redress.
Apotex v. Canada, (FCA, 1990)
These were an appeal and a cross-appeal from a decision by Dub J. allowing an application for
mandamus to issue a notice of compliance (NOC) with respect to Apotex's generic version of the
drug enalapril and denying the appellants' application for prohibition. The Patent Act
Amendment Act, 1992 (Bill C-91), which was given Royal Assent on February 4, 1993, was
enacted in order to protect innovator pharmaceutical companies' distribution and sales rights to
patented drugs. Bill C-91 came into force on February 15, 1993 with the exception of the new
section 55.2 of the Patent Act which, together with the Patented Medicines Regulations, were not
brought into effect until March 12, 1993. Under the Food and Drugs Act (FDA), the Minister of
National Health and Welfare must ensure that new drugs meet health and safety requirements.
The manufacturer of a new drug must file a New Drug Submission (NDS) setting out the drug's
qualities, ingredients and methods of manufacture and purification. The respondent, Apotex, after
filing a NDS in respect of its generic drug Apo-Enalapril, sought an order of mandamus to
compel the Minister to issue a notice of compliance with respect to that drug. Apotex's NDS was
incomplete when it filed its mandamus application; nevertheless, by February 3, 1993, the new
drug met all of the scientific safety and efficacy conditions required for a NOC to issue.
Although the NDS had cleared the scientific and regulatory review process, the Department's
ADM and DM decided to seek legal advice regarding the authority of the Minister or his ADM
to issue the NOC in view of the impending passage of Bill C-91. The appellant, Merck, also
forwarded a number of legal opinions to the Minister and then sought prohibition to prevent the
Minister from issuing the notice of compliance. The Trial Judge ruled that the Minister did not
possess the broad discretion to justify his refusal to issue the NOC and that the delay in issuing it
was not warranted. He also rejected the argument that to issue mandamus when a new regulatory
regime was pending would "frustrate the will of Parliament". This appeal raised a number of
issues, namely: 1) the principles governing mandamus and the question of prematurity; 2)
whether Apotex had a vested right to a NOC by March 12, 1993; 3) the balance of convenience;
4) whether Apotex's vested right to a NOC was divested by Bill C-91 and the Patented
Medicines Regulations and 5) the jurisdiction of the Court. By cross-appeal, the Minister argued
that the Trial Judge erred in finding the delay in issuing the NOC to be unwarranted.
Held, the appeal and cross-appeal should be dismissed.
1) Several principal requirements must be satisfied before mandamus will issue. First, there must
be a public legal duty to act owed to the applicant. Generally, mandamus cannot issue with
respect to a duty owed to the Crown. The Minister had a duty to act which was owed to Apotex.
Merck's submission, that the Minister owed no duty to Apotex at the time it commenced its
judicial review application on December 22, 1992 or on the hearing date, was partly correct. An
order of mandamus will not lie to compel an officer to act in a specified manner if he is under no
obligation to act as of the hearing date, but that rule was not valid if applied as of the date that
the application for mandamus was filed. While it is open to a respondent to pursue dismissal of
an application where the duty to perform has yet to arise, in the absence of compelling reasons,

an application for mandamus should not be defeated on the ground that it was initiated
prematurely. Provided that the conditions precedent to the exercise of the duty have been
satisfied at the time of the hearing, the application should be assessed on its merits.
2) If a decision-maker has an unfettered discretion which he has not exercised as of the date a
new law takes effect, the applicant cannot successfully assert either a vested right or even the
right to have the decision-maker render a decision. A "vested right" must be distinguished from a
"mere hope or expectation". The scope of a decision-maker's discretion is directly contingent
upon the characterization of various considerations as "relevant or irrelevant" to its exercise. The
Food and Drug Regulations restrict the factors to be considered by the Minister in the proper
exercise of his discretion to those concerning a drug's safety and efficacy. They neither expressly
nor implicitly contemplate the broad scope of ministerial discretion advocated by Merck. It
cannot be said that the time needed to enable a decision-maker to seek and obtain legal advice in
any decision-making process is of itself a basis for denying mandamus. That self-imposed
obligation cannot of itself deprive Apotex of its right to mandamus. In the absence of intervening
legislation, the "legal advice" issue would not have arisen. The legal advice sought herein had no
bearing on the exercise of the Minister's narrowly circumscribed discretion. Moreover, to deny
mandamus because of legal concerns generated by a party adverse in interest (Merck) would be
to judicially condone what might be regarded as a tactical manoeuvre intended to obfuscate and
delay the decision-making process. Pending legislative policy was not a consideration relevant to
the exercise of the Minister's discretion. It could not be said that, in the exercise of his statutory
power under the Food and Drug Regulations, the Minister was entitled to have regard to the
provisions of Bill C-91 after enactment but prior to proclamation. Apotex had a vested right to
the NOC notwithstanding the Minister's failure to render a decision by March 12, 1993.
3) The case law on mandamus reveals a number of techniques resorted to by courts in balancing
competing interests. Any inclination to engage in a balancing of interests must be measured
strictly against the rule of law. Having regard to the relevant jurisprudence, it had to be
concluded that this Court possesses discretion to refuse mandamus on the ground of balance of
convenience. The cases demonstrate three factual patterns in which the balance of convenience
test has been implicitly acknowledged. First, there are those cases where the administrative cost
or chaos that would result from granting such relief is obvious and unacceptable. The second
ground for denying mandamus appears to arise in instances where potential public health and
safety risks are perceived to outweigh an individual's right to pursue personal or economic
interests. In this case, there was no issue with respect to administrative chaos or public health and
safety. The third line of authority attempts to establish a principle by which it can be determined
whether a property owner has acquired a vested right to a building permit pending approval of a
by-law amendment. That principle is of no relevance to this case nor to the issue of the Court's
discretion to refuse mandamus on the ground of balance of convenience. There was no legal
basis upon which the "balance of convenience" test could be applied to deny Apotex the relief
sought.
4) The Patented Medicines Regulations prohibit the issuance of NOCs in respect of "patentlinked" drugs. Subsections 5(1) and (2) thereof refer to NDSs filed before March 12, 1993. While
NOCs and patent rights are linked, they have never been mutually dependent. Practically
speaking, Merck is seeking an interlocutory injunction against Apotex with respect to possible

patent infringement without having to satisfy the conditions precedent imposed at law to the
granting of such relief. An order in the nature of mandamus cannot be viewed as an instrument
which "facilitates" patent infringement. The Patented Medicines Regulations are not procedural
regulations per se. The imposition of a criterion that a NOC cannot issue with respect to a patentlinked NDS is clearly a substantive change in the law and hence subject to the rules of statutory
construction applicable to legislation purporting to affect vested rights. Subsections 5(1) and (2)
do not manifestly seek to divest persons of acquired rights; they are at best ambiguous. While
Parliament has the authority to pass retroactive legislation, thereby divesting persons of an
acquired right, vested rights could not be divested by the Patented Medicines Regulations unless
the enabling legislation, that is the Patent Act or Bill C-91, implicitly or explicitly authorize such
encroachments. Bill C-91 contains no provision specifically authorizing regulations to interfere
with existing or vested rights except as to compulsory licences granted after December 20, 1991.
5) The jurisdiction of this Court was not "ousted" by the paramountcy provision in Bill C-91.
Subsection 55.2(5) of the Patent Act could not be said to be paramount to section 18 of the
Federal Court Act and could not be construed as a privative clause insulating the Minister and
the relevant legislation from judicial review.
Canada v. Telezone (SCC, 2010)
In 1995, Industry Canada issued a call for personal communication services licence applications,
and released the policy statement within which potential service providers could shape their
applications. The statement provided that Industry Canada would grant up to six licences on the
basis of criteria it set out. T submitted an application, but when Industry Canada announced its
decision, there were only four successful applicants and T was not among them. T filed an action
against the Federal Crown in the Ontario Superior Court of Justice for breach of contract,
negligence and unjust enrichment, and sought compensation for claimed losses of $250 million.
It claimed that it was an express or implied term of the policy statement that Industry Canada
would only issue fewer than six licences if fewer than six applications met the criteria. Since its
application satisfied all the criteria, it says, Industry Canada must have considered other
undisclosed factors when it rejected Ts application. The Attorney General of Canada, relying on
Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287, challenged the jurisdiction of the
Superior Court on the ground that the claim constituted a collateral attack on the decision, which
is barred by the grant to the Federal Court, by s. 18 of the Federal Courts Act , of exclusive
judicial review jurisdiction in relation to decisions of all federal boards, commissions or other
tribunals. The Superior Court dismissed the objection on the ground that it was not plain and
obvious that the claim would fail. The Court of Appeal upheld the decision, holding that Grenier
was wrongly decided. In that courts view s. 17 of the Federal Courts Act and s. 21 of the
Crown Liability and Proceedings Act conferred concurrent jurisdiction on the superior courts
and the Federal Court for claims against the Crown, and s. 18 of the Federal Courts Act did not
remove relief by way of an award of damages from the jurisdiction of superior courts.
Held: The appeal should be dismissed.

This appeal is fundamentally about access to justice. People who claim to be injured
by government action should have whatever redress the legal system permits through procedures
that minimize unnecessary costs and complexity. The Courts approach should be practical and
pragmatic with that objective in mind. Acceptance of Grenier would tend to undermine the
effectiveness of the Federal Courts Act reforms of the early 1990s by retaining in the Federal
Court exclusive jurisdiction over a key element of many causes of action proceeding in the
provincial courts despite Parliaments promise to give plaintiffs a choice of forum and to make
provincial superior courts available to litigants in all cases in which relief is claimed against the
[federal] Crown except as otherwise provided.
Apart from constitutional limitations, none of which are relevant here, Parliament
may by statute transfer jurisdiction from the superior courts to other adjudicative bodies
including the Federal Court. However, any derogation from the jurisdiction of the provincial
superior courts (in favour of the Federal Court or otherwise) requires clear and explicit statutory
language. Nothing in the Federal Courts Act satisfies this test. The explicit grant to the
provincial superior courts of concurrent jurisdiction in claims against the Crown in s. 17 of that
Act (as well as s. 21 of the Crown Liability and Proceedings Act ) directly refutes the Attorney
Generals argument. The grant of exclusive jurisdiction to judicially review federal decision
makers in s. 18 is best understood as a reservation or subtraction from the more comprehensive
grant of concurrent jurisdiction in s. 17 in all cases in which relief is claimed against the
[federal] Crown. This reservation or subtraction is expressed in s. 18 of the Federal Courts
Act in terms of particular remedies. All the remedies listed are traditional administrative law
remedies and do not include awards of damages. If a claimant seeks compensation, he or she
cannot get it on judicial review, but must file an action.
The Federal Courts Act contains other internal evidence that Parliament could not
have intended judicial review to have the gatekeeper function envisaged by Grenier.
Section 18.1(2) imposes a 30-day limitation for judicial review applications. A 30-day cut off
for a damages claimant would be unrealistic, as the facts necessary to ground a civil cause of
action may not emerge until after 30 days have passed, and the claimant may not be in a position
to apply for judicial review within the limitation period. While the 30-day limit can be extended,
the extension is discretionary and would subordinate the fate of a civil suit brought in a superior
court to the discretion of a Federal Court judge ruling upon a request for an extension of time for
reasons that have to do with public law concerns, not civil damages. Moreover, the grant of
judicial review is itself discretionary and may be denied even if the applicant establishes valid
grounds for the courts intervention. This does not align well with the paradigm of a common
law action for damages where, if the elements of the claim are established, compensation ought
generally to follow as a matter of course. Further, s. 8 of the Crown Liability and Proceedings
Act , which codifies the defence of statutory authority, is evidence that Parliament envisaged that
the lawfulness of administrative decisions could be assessed by the provincial superior court in
the course of adjudicating a claim for damages.
The Grenier approach cannot be justified by the rule against collateral attacks. Ts
claim is not an attempt to invalidate or render inoperative the Ministers decision; rather, the
decision and the financial losses allegedly consequent to it constitute the very foundation of the
damages claim. In any event, given the statutory grant of concurrent jurisdiction in s. 17 of the

Federal Courts Act , Parliament has stated that provincial superior courts possess the concurrent
necessary jurisdiction to dispose of the whole of a claim and this includes any attack on the
validity of the Ministers decision where this issue is essential to the cause of action and where
adjudicating the matter is a necessary step in disposing of the claim. While the doctrine of
collateral attack may be raised by the Crown in the provincial superior court as a defence, the
possible availability of the defence is not an argument against provincial superior court
jurisdiction. Similarly, while it may be open to the Crown, by way of defence, to argue that the
government decision maker was acting under statutory authority which precludes compensation
for consequent losses, this is not a matter of jurisdiction and can be dealt with as well by the
provincial superior court as by the Federal Court.
It is true that the provincial superior courts and the Federal Court have a residual
discretion to stay a damages claim if, in its essential character, it is a claim for judicial review
with only a thin pretence to a private wrong. However, where a plaintiffs pleading alleges the
elements of a private cause of action, the provincial superior court should not in general decline
jurisdiction on the basis that the claim looks like a case that could be pursued on judicial review.
If the plaintiff has pleaded a valid cause of action for damages, he or she should generally be
allowed to pursue it.
Here, Ts claim as pleaded is dominated by private law considerations. It is not
attempting to nullify or set aside the decision to issue licences. Nor does it seek to deprive the
decision of any legal effect. Ts causes of action in contract, tort and equity are predicated on the
finality of that decision excluding it from participation in the telecommunications market. The
Ontario Superior Court of Justice has jurisdiction over the parties and the subject matter, and has
the power to grant the remedy of damages. There is nothing in the Federal Courts Act to
prevent the Ontario Superior Court from adjudicating Ts claim.
Reece v. City of Edmonton (Alta. C.A., 2012)
NO HEADNOTE
Harelkin v. University of Sask. (SCC, 1976)
The appellant, a student in the School of Social Work, Saskatoon Faculty, University of Regina,
was required by university authorities to discontinue his studies. The University Act provided an
appeal to a committee of the university council, obligated to "hear and decide". The committee
heard one sidethe universityand decided adversely to the student, all in the absence of the
student. The student did not know what was placed against him in the committee nor was he
afforded an opportunity to correct or contradict any statement pre-judicial to his position. Some
months later, following an exchange of correspondence between appellant's counsel and the
university authorities, in which a rehearing was requested and refused, certiorari and mandamus
proceedings were launched. It was contented on the part of the university that the student was not
damnified because he had a further appeal to a committee of the senate of the university also
charged with the duty, on appeal, to "hear and decide". The trial judge rejected the contentions of

the university and granted certiorari quashing the order of the council committee. He directed
the university to hold a hearing, pursuant to s. 78(1)(c) of The University of Regina Act, 1974,
and to allow the applicant to be present, to be heard, to present evidence and to be represented by
counsel, with respect to the refusal of the School of Social Work to allow him to pursue further
studies. The Court of Appeal for Saskatchewan reversed, holding that, where there is a right of
appeal certiorari should not be granted except under special circumstances and no special
circumstances were established. From this decision the student appealed to this Court.
Held (Spence, Dickson and Estey B. dissenting): The appeal should be dismissed.
Per Martland, Pigeon, Beetz and Pratte JJ.: The contentions made against the judgment of the
Court of Appeal could be summarized in four main propositions: (I) failure by the council
committee to respect the principle audi alteram partem was akin to a jurisdictional error and the
writs should issue ex debito justitiae; (2) the decision of the council committee was an absolute
nullity from which there could be no appeal to the senate committee; (3) even if there could be
an appeal to the senate committee, appellant's right of appeal was not an adequate alternative
remedy; (4) the principle audi alteram partem had in this case been given statutory force and the
Courts should exercise their discretion with a view to enforcing the statute.
1. Failure to respect the principle audi alteram partem and issuance of the writs ex debito
justitiae,
The use of the expression ex debito justitiae in conjunction with the discretionary remedies of
certiorari and mandamus is unfortunate. It is based on a contradiction and imports a great deal of
confusion into the law. A writ cannot at once be a writ of grace and a writ of right. To say in a
case that the writ should issue ex debito justitiae simply means that the circumstances militate
strongly in favour of the issuance of the writ rather than for refusal. But the expression, albeit
Latin, has no magic virtue and cannot change a writ of grace into a writ of right nor destroy the
discretion even in cases involving lack of jurisdiction. A fortiori does the discretion remain in
cases not of lack of jurisdiction, but of excess or abuse of jurisdiction such as those involving a
breach of natural justice.
2. Whether the decision of the council committee was a nullity from which there could be no
appeal.
There was no want of jurisdiction in the committee of the council to hear and decide upon
appellant's application or memorial. In the exercise of this jurisdiction, the committee erred in
failing to observe the rules of natural justice. While it could be said in a manner of speaking that
such an error was "akin" to a jurisdictional error, it did not entail the same type of nullity as if
there had been a lack of jurisdiction in the committee. It simply rendered the decision of the
committee voidable at the instance of the aggrieved party and the decision remained appealable
until quashed by a superior court or set aside by the senate.
To hold otherwise would produce undesirable practical effects. For instance, an aggrieved
student who had less time than appellant and who cared more about the expenditure could not
appeal directly to the senate; he would have to seek relief from the courts, go back before the
committee of the council, and from there to the senate, if need be. A purely conceptual view of
absolute nullity which would, in this type of case, cause such inconvenient and impractical
results could not be theoretically sound.

Alternatively, the motion that was passed by the council committee to review the action taken by
the Faculty of Social Work in evaluating appellant's academic performance could be said to be a
"decision" within the meaning of s. 33(1)(e) of the Act. It was a motion whereby the council
committee "decided upon, subject to an appeal to the senate, an application or memorial by a
student in connection with any faculty of the university" within the meaning of s. 78(1)(c) of the
Act. The council committee in effect decided that appellant's application or memorial was
without merit and implicitly dismissed it. Even though this decision was arrived at in defiance of
natural justice, it nonetheless remained a "decision" disposing of appellant's case and was
"subject to an appeal to the senate" pursuant to s. 78(1)(c).
Furthermore, and even if it could be said that the decision of the council committee was a nullity,
it was still appealable to the senate committee for the simple reason that the senate committee
was given by statute the power to hear and decide upon appeals from the decisions of the
council, whether or not such decisions were null.
3. Whether appellant's right of appeal to the senate committee was an adequate alternative
remedyThe balance of convenience.
The trial judge erred in holding that there was nothing in the appeal procedure whereby the
senate was required "to hear" the appellant. First, it was clear that the senate was required to hear
appellant, as was council since the same wording "to hear and decide" is found both in s. 33(1)(e)
and in s. 78(1)(c); having rightly decided upon the basis of that wording, that the council was
required to hear appellant, the trial judge could not, without contradicting and misdirecting
himself, hold that there was nothing in the appeal procedure whereby the senate was required to
hear appellant. Second, in declining to evaluate, difficult as it may have been, whether or not the
failure to render natural justice could be cured in the appeal, the trial judge refused to take into
consideration a major element for the determinationof the case, thereby failing to exercise his
discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene.
In order to evaluate whether appellant's right of appeal to the senate committee constituted an
adequate alternative remedy and even a better remedy than a recourse to the courts by way of
prerogative writs, several factors should have been taken into consideration among which the
procedure on the appeal, the composition of the senate committee, its powers and the manner in
which they were probably to be exercised by a body which was not a professional court of appeal
and was not bound to act exactly as one nor likely to do so. Other relevant factors included the
burden of a previous finding, expeditiousness and costs. A consideration of all the factors led to
the conclusion that appellant's right of appeal to the senate committee did provide him with an
adequate alternative remedy. In addition this remedy was a more convenient remedy for
appellant as well as for the university in terms of costs and expeditiousness. Also, the council
committee's refusal to grant a rehearing to appellant was not a sufficient reason for issuing
certiorari and mandamus.
4. Statutory force of the rule audi alteram partem
The submission that in a case such as the present, where the duty of the council committee to
hear appellant was imposed by statute, the courts should not decline to enforce the statute but
ought to exercise their discretion, if any, so as to uphold it was not accepted. Sections 78(1)(c)
and 33(1)(e) are inspired by the general intent of the Legislature that intestine grievances
preferably be resolved internally by the means provided in the Act, the university thus being

given the chance to correct its own errors, consonantly with the traditional autonomy of
universities as well as with expeditiousness and low cost for the public and the members of the
university. While of course not amounting to privative clauses, provisions like ss. 55, 66, 33(1)
(e) and 78(1)(c) are a clear signal to the courts that they should use restraint and be slow to
intervene in university affairs by means of discretionary writs whenever it is still possible for the
university to correct its errors with its own institutional means. In using restraint, the courts do
not refuse to enforce statutory duties imposed upon the governing bodies of the university. They
simply exercise their discretion in such a way as to implement the general intent of the
Legislature.
Figliola v. B.C. Human Rights Tribunal (SCC, 2012)
The complainant workers suffered from chronic pain and sought compensation from British
Columbias Workers Compensation Board. Pursuant to the Boards chronic pain policy, they
received a fixed compensation award. They appealed to the Boards Review Division, arguing
that a policy which set a fixed award for chronic pain was patently unreasonable,
unconstitutional and discriminatory on the grounds of disability under s. 8 of the British
Columbia Human Rights Code (Code). The Review Officer accepted that he had jurisdiction
over the Human Rights Code complaint and concluded that the Boards chronic pain policy was
not contrary to s. 8 of the Code and therefore not discriminatory.
The complainants appealed this decision to the Workers Compensation Appeal
Tribunal (WCAT). Before the appeal was heard, the legislation was amended removing
WCATs authority to apply the Code. Based on the amendments, the complainants appeal of the
Review Officers human rights conclusions could not be heard by WCAT, but judicial review
remained available. Instead of applying for judicial review, the complainants filed new
complaints with the Human Rights Tribunal, repeating the same s. 8 arguments about the Boards
chronic pain policy that they had made before the Review Division.
The Workers Compensation Board brought a motion asking the Tribunal to dismiss
the new complaints, arguing that under s. 27(1)(a) of the Code, the Tribunal had no jurisdiction,
and that under s. 27(1)(f) of the Code, the complaints had already been appropriately dealt
with by the Review Division. The Tribunal rejected both arguments and found that the issue
raised was an appropriate question for the Tribunal to consider and that the parties to the
complaints should receive the benefit of a full Tribunal hearing. On judicial review, the
Tribunals decision was set aside. The Court of Appeal, however, concluded that the Tribunals
decision was not patently unreasonable and restored its decision.
Held: The appeal should be allowed, the Tribunals decision set aside and the
complaints dismissed.
Per LeBel, Deschamps, Abella, Charron and Rothstein JJ.: Section 27(1)(f) of the
Code is the statutory reflection of the collective principles underlying the doctrines of issue
estoppel, collateral attack and abuse of process doctrines used by the common law as vehicles
to transport and deliver to the litigation process principles of finality, the avoidance of
multiplicity of proceedings, and protection for the integrity of the administration of justice, all in
the name of fairness.
Read as a whole, s. 27(1)(f) does not codify these actual doctrines or their technical
explications, it embraces their underlying principles. As a result, the Tribunal should be guided

less by precise doctrinal catechisms and more by the goals of the fairness of finality in
decision-making and the avoidance of the relitigation of issues already decided by a
decision-maker with the authority to resolve them. Relying on these principles will lead the
Tribunal to ask itself whether there was concurrent jurisdiction to decide the issues; whether the
previously decided legal issue was essentially the same as what is being complained of to the
Tribunal; and whether there was an opportunity for the complainants or their privies to know the
case to be met and have the chance to meet it, regardless of how closely the previous process
procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to
determining whether the substance of a complaint has been appropriately dealt with under
s. 27(1)(f). The Tribunals strict adherence to the application of issue estoppel was an overly
formalistic interpretation of s. 27(1)(f), particularly of the phrase appropriately dealt with, and
had the effect of obstructing rather than implementing the goal of avoiding unnecessary
relitigation.
Section 27(1)(f) does not represent a statutory invitation either to judicially review
another tribunals decision, or to reconsider a legitimately decided issue in order to explore
whether it might yield a different outcome. The section is oriented instead towards creating
territorial respect among neighbouring tribunals, including respect for their right to have their
own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative
body decides an issue within its jurisdiction, it and the parties who participated in the process are
entitled to assume that, subject to appellate or judicial review, its decision will not only be final,
it will be treated as such by other adjudicative bodies.
The discretion in s. 27(1)(f) was intended to be limited. This is based not only on
the language of s. 27(1)(f) and the legislative history, but also on the character of the other six
categories of complaints in s. 27(1), all of which refer to circumstances that make hearing the
complaint presumptively unwarranted, such as complaints that are not within the Tribunals
jurisdiction, allege acts or omissions that do not contravene the Code, have no reasonable
prospect of success, would not be of any benefit to the complainant or further the purposes of the
Code, or are made for improper motives or bad faith.
What the complainants in this case were trying to do is relitigate in a different
forum. Rather than challenging the Review Officers decision through the available review route
of judicial review, they started fresh proceedings before a different tribunal in search of a more
favourable result. This strategy represented a collateral appeal to the Tribunal, the very
trajectory that s. 27(1)(f) and the common law doctrines were designed to prevent. The
Tribunals analysis made it complicit in this attempt to collaterally appeal the merits of the
Boards decision and decision-making process. Its analysis represents a litany of factors having
to do with whether it was comfortable with the process and merits of the Review Officers
decision: it questioned whether the Review Divisions process met the necessary procedural
requirements; it criticized the Review Officer for the way he interpreted his human rights
mandate; it held that the decision of the Review Officer was not final; it concluded that the
parties were not the same before the Workers Compensation Board as they were before the
Tribunal; and it suggested that Review Officers lacked expertise in interpreting or applying the
Code.
The standard of review designated under s. 59 of the Administrative Tribunals Act is
patent unreasonableness. Because the Tribunal based its decision to proceed with these
complaints and have them relitigated on predominantly irrelevant factors and ignored its true
mandate under s. 27(1)(f), its decision is patently unreasonable.

Per McLachlin C.J. and Binnie, Fish and Cromwell JJ.: Both the common law and
in particular s. 27(1)(f) of the Code are intended to achieve the necessary balance between
finality and fairness through the exercise of discretion. It is this balance which is at the heart of
both the common law finality doctrines and the legislative intent in enacting s. 27(1)(f). A
narrow interpretation of the Tribunals discretion under s. 27(1)(f) does not reflect the clear
legislative intent in enacting the provision. Rather, s. 27(1)(f) confers, in very broad language, a
flexible discretion on the Human Rights Tribunal to enable it to achieve that balance in the
multitude of contexts in which another tribunal may have dealt with a point of human rights law.
The grammatical and ordinary meaning of the words of s. 27(1)(f) support an
expansive view of the discretion, not a narrow one. Nor can it be suggested that s. 27(1)(f) be
read narrowly because of the character of the other six categories of discretion conferred by
s. 27(1). The provisions legislative history also confirms that it was the Legislatures intent to
confer a broad discretion to dismiss or not to dismiss where there had been an earlier
proceeding. The intent was clearly to broaden, not to narrow, the range of factors which a
tribunal could consider.
The Courts jurisprudence recognizes that, in the administrative law context,
common law finality doctrines must be applied flexibly to maintain the necessary balance
between finality and fairness. This is done through the exercise of discretion taking into account
a wide variety of factors which are sensitive to the particular administrative law context in which
the case arises and to the demands of substantial justice in the particular circumstances of each
case. Finality and requiring parties to use the most appropriate mechanisms for review are of
course important considerations. But they are not the only, or even the most important
considerations. The need for this necessarily broader discretion in applying the finality doctrines
in the administrative law setting is well illustrated by the intricate and changing procedural
context in which the complainants found themselves in this case and underlines the wisdom of
applying finality doctrines with considerable flexibility in the administrative law setting. The
most important consideration is whether giving the earlier proceeding final and binding effect
will work an injustice. If there is substantial injustice, or a serious risk of it, poor procedural
choices by the complainant should generally not be fatal to an appropriate consideration of his or
her complaint on its merits.
In this case, the Tribunals decision not to dismiss the complaint under s. 27(1)(f)
was patently unreasonable. While the Tribunal was entitled to take into account the alleged
procedural limitations of the proceedings before the Review Officer, it committed a reversible
error by basing its decision on the alleged lack of independence of the Review Officer and by
ignoring the potential availability of judicial review to remedy any procedural defects. More
fundamentally, it failed to consider whether the substance of the complaint had been addressed
and thereby failed to take this threshold statutory requirement into account. This requires
looking at such factors as the issues raised in the earlier proceedings; whether those proceedings
were fair; whether the complainant had been adequately represented; whether the applicable
human rights principles had been canvassed; whether an appropriate remedy had been available
and whether the complainant chose the forum for the earlier proceedings. This flexible and
global assessment seems to be exactly the sort of approach called for by s. 27(1)(f). The Tribunal
also failed to have regard to the fundamental fairness or otherwise of the earlier proceeding. All
of this led the Tribunal to give no weight at all to the interests of finality and to largely focus
instead on irrelevant considerations of whether the strict elements of issue estoppel were present.

The appeal should be allowed and the application of the Workers Compensation
Board under s. 27(1)(f) should be remitted to the Tribunal for reconsideration.