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Authorson
Arbitrariness not a basis for Hab corp in this case- Transfer decision initiated by mere change
in policy = not arbitrary
-inmate had failed to complete vio offender program
Hab corp avail because – CSC failed to disclose scoring matrix for computerized security
rating tool = deprivation of residual liberty of the inmates.
-PF generally requires that the decision maker disclose the information relied on. The
individual must know the case he has to meet.
-Failure to provide sufft info = renders decision VOID for lack of jurisdiction.
-It was not enough for the inmates to know what factors but also entitled to know the weight
given to each factor.
-CSC concealed crucial info (not forthright about availability of scoring matrix) this = violation
of statutory duty of disclosure therefore transfer decision made improperly.
and concluded there was a clear breach of the stat duty “to disclose all the inforation to
be considered in the taking of the decision or a sumary of that information”.
-appellants acted diligently in their request for the info.
-override of the computeried classification was not normally relied upon and required detailed
justification – therefore court did not accept that those scores were “simply a preliminary
assessment tool”. Court also took note that override was not used in this case suggesting the
scores fixed the decision.
-availablity of the info requested (scorig matrix) + importance of that info to the
decision = should have been disclosed.
-major breach of duty to disclose inherent in procedural fairness. = transfers made improperly,
null and void for want of jurisdiction and = therefore appellants unlawfully deprived of their
(“residual”) liberty.
Security context exigencies cannot be used at the s7 stage of the analysis to excuse
procedures that do not conform to fundamental justice.
-hearing reqt is met but secrecy denies persons right to know case against them and thereby
denies them the rigt to challenge the case. - thereby undermines judge's ability to decide the
case on all the facts and law.
-to satisfy s7 : either the person must be give all the relvant info or a substantial sunstitute for
that info must be found
Remedy
Court held: IRPA's procedure for judicial approval of certificates of no force or effect due to
being inconsistent with the Charter.
-note: SCC suspended the above declaration for 1 year.
Soft law – ppolicies issued by admin agencies designed to achieve uniformity in procedures ,
etc,, are a necessary part of their functioning – esp large bodies such as the IRB. These
guidelines are not binding on decision makers, but they may validly influence their conduct.
Guidelines may be expressly authorised by statute, but are not binding as a result – they
cannot = a mandatory rule – members must still have some form of meaningul discretion
to deviate from them.
Guideline 7 expressly permits departure. (could still be possible that member feels bound by it
but that is not a necessary presumption)
-Procedural fariness does not require the disclosure of a privileged legal opinion and
does not affect sol-client privilege.
-legisl purporting to limit or deny s-c priv must be interp restrictively. S-C priv can never be
diminished by inference.
“Record of proceedings” in s.10 of Ontarion Judicial Review Procedure Act does not
incl priveleged comm from in-house counsel.
To be applied that way the provision would have to clearly or uneuivocally express the
intention do so.
Solicitor-Client Priv must be:
i. a communication btw sol and client
ii. entail the seeking or giving of legal advice
iii. be intended by the parties to be confidential
-once established s-c priv is broad and all encompassing. all comm made w/in fraweork of the
s-c relationship.
Execeptions:
● legal advice not sought or offered
● not intended to be confidential, or
● purpose is to further unlawful conduct
R v Campbell – appellant police officers sought access to the legal advice prov to the RCMP
by the Dept of Justice. Court compared function of public lawyers in govt agencies to a
corporate in-house counsel -if legal advice given to a “client department” then priv applied.
while policy advice outside legal responsibilities not protected by the priv.
-Compl tried to raise the common interest exception arguing that her and the Commission
had a joint / common interest – court did not agree – Commission does not share an interest
with the parties before it – rather the Commission is a disinterested gatekeeper for
human rights complaints and by definition does not have a stake in the outcome of any
claim.
-nor does the Comm'n have a trust relationship or owe any fiduciary duty to the complainant
so as to give rise to the exception.
-The common interest exception to s-c priv does not apply to an administrative board w/
respect to the parties before it.
Why not an impermissable collateral attack on OEB's order: this doctrine prevents parties fro
undermining previous orders by admin tribunal or court. Invoked where party attacks the
validity of an order bypassing the direct attack procedures available to them, eg appeal or
judicial review. (in this case comencing a civil action that deals with orders by OEB enabling
Criminal Code breach)
-does not apply because appellant's objective was not to invalidate or render the Board's
orders inoperative, but to recover money ilegally collected as result of those orders.
-more often coll attack is to be applied to a party bound by an order seeking to avoid its effect
by challenging it in the wrong forum. But here he is not bound by the order – the purpose of
the rule against Coll Attack is to maintain the rule of law and proper administration of justice
-ie applies where a party is attempting to circumvent decision rendered against them.
The power to extend members’ appointments does not undermine the independence of
Tribunal members. This question is settled by Valente. A reasonable person informed of the
facts would not conclude that members whose appointments were extended were likely to be
pressured to adopt the Chairperson’s views
Dunsmuir applied:
http://www.law.utoronto.ca/faculty_content.asp?contentID=1743&itemPath=1/13/0/0/0
Appeal by Martin, an ousted member of the City of Vancouver's Board of Variance, from the dismissal of his
application for judicial review of City Council's resolution rescinding his appointment. The chambers judge
held that City Council had a broad power to rescind the appointments of members of the Board of Variance.
While members were appointed to three-year terms, the power to rescind those appointments "at any time"
made their appointments "at pleasure." There was nothing to establish bad faith on the part of City Council,
which owed no duty of procedural fairness to Board members.
HELD: Appeal dismissed. The chambers judge correctly concluded that, in the context of the statutory
framework within which City Council functioned, the Council breached no principles of procedural fairness
and acted in good faith in rescinding the appointments of the members of the Board. The Board was not an
independent tribunal with security of tenure. It carried out a limited role in deciding specific disputes relating
to some planning and development matters in the context of Council's plenary powers over that process.
Council had the explicit power to rescind appointments at any time without reasonable cause.
Coffey v. College of Licensed Practical Nurses of Manitoba
He then attempted to solicit support from other members for the convening of a special meeting of the College to
deal with fees and other matters. It was aspects of that solicitation that led the College to direct an investigation
into the appellant's conduct and then to lay charges. The principal problems with the solicitation, from the
College's perspective, were that it contained false, inaccurate, erroneous and misleading information in
respect of staff salaries, and that it circulated outside the licensed practical nurse membership. In the Panel's
opinion, those factors, taken together, brought the profession into disrepute and constituted unprofessional
conduct. The appellant maintained that any errors he made in the solicitation were no more than errors in
judgment, not in any way rising to the level warranting professional discipline. He argued that he had been
punished because he had challenged the College, and had made life difficult for those administering the
affairs of the college.
HELD: Appeal dismissed. The decision of the Panel fell clearly within the "range of possible, acceptable
outcomes which were defensible in respect of the facts and law". The degree of deference to the Panel's
decision intended by the Act to be shown by the court on appeal of that decision was fairly high. The
standard of review was therefore reasonableness. The appellant had the burden of persuading the court that
"there is no line of analysis within the ... reasons that could reasonably lead the tribunal from the evidence
before it to the conclusion at which it arrived". The reasons of the Panel demonstrated that it considered all of
the evidence before it. The appellant knew that the Union mailing list included non-licensed practical nurses.
Moreover, in his evidence the appellant acknowledged that non-licensed practical nurses were among the
persons who would receive the solicitation. Second, there was evidence that the solicitation contained false
information relating to staff salaries. That false information impugned the integrity of the College's officers
and staff.
18.1 (4) The Federal Court may grant relief under subsection (3) if it is satisfied
that the federal board, commission or other tribunal
...
...
I am satisfied that it remains clear that, where this Court is called upon to review a finding of a
federal board, commission or other tribunal, the decision of which is under judicial review by
this Court, this Court is still entitled, and indeed obliged, to grant relief if it determines that the
finding is indeed a finding of fact and that it was made in a perverse or capricious manner or
without regard for the material before the federal board, commission or other tribunal. This
"standard of review" has been interpreted as akin to the now abolished standard of "patent
unreasonableness".8