Some
Recent Administrative Law Cases of Interest
David Stratas,
Heenan
Blaikie LLP, Toronto, Ontario
(416) 643-6846 / (416) 360-8425 (fax)
This document is available at http://davidstratas.com/adminnov3.html.
The following are some recent administrative law cases. By no means does
this purport to be a comprehensive list.
I have chosen recent cases that are from the Supreme Court of Canada,
that are interesting/significant or that have
particularly rich reasoning that would be of great assistance to anyone wishing
to research the law on a particular point.
I have grouped these cases under four sections: "Before the
tribunal", "Before the judicial review court", "Constitutional
considerations" and "Civil litigation against administrative
bodies".
Click on the name of any case and you will be taken to the full text of that
case as it appears on the internet.
The list of cases began as a list to assist people in Ontario and so there are a large number of Ontario cases. However, many of those cases contain ample
reference to cases across Canada
and, increasingly, this page is being modified to capture all cases across Canada.
By all means, send comments, questions or suggestions to me.
This was last updated in September, 2008.
A. Before
the tribunal
(1) Tribunal
Procedures, Natural Justice and Fairness
Bottom line observations from the recent cases:
Determining the requirements of procedural fairness requires a fact-sensitive
analysis using the Baker factors. The analysis is a very practical one. Courts
repeatedly overlook "technical" lapses as long as the substance of
the procedures has been scrupulously fair.
- Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (classic
case concerning level of procedural fairness warranted in a particular
case)
- Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884 at para. 22 (avoid a categorical approach; the old
"judicial" and "quasi-judicial" distinction is of
limited relevance)
- May
v. Ferndale Institution,
[2005] 3 S.C.R. 809 (latest word from S.C.C. on obligations on
administrative decision-makers to disclose relevant information in advance
of the hearing)
- Canadian
Pacific Railway Co. v. Vancouver (City), [2006] 1 S.C.R. 227 (whether
the City owed procedural fairness to an affected company before adopting a
development plan by-law; semble, a recognition of procedural fairness for the
“legislative” function of enacting subordinate legislation)
- Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 (procedural
fairness, interrelationship with s. 7 of the Charter, in removal proceedings).
- TELUS Communications Inc. v. Telecommunications Workers
Union, 2005
FCA 262 (broad discretion of tribunal to take into account hearsay and
unsworn evidence)
- Ocean Port Hotel Ltd. v. British Columbia (The General
Manager, Liquor Control and Licensing Branch) (2002), 213 D.L.R. (4th) 273
(B.C.C.A.) (same)
- Stetler v. Ontario Flue-Cured
Tobacco Growers' Marketing Board (2005), 200 O.A.C. 209 (C.A.) (same; also strong and
unequivocal evidence within the civil standard of proof is required where
either the issues or the consequences for the individual are very serious)
- IMS Health Canada, Limited v. Information and Privacy
Commissioner,
2005 ABCA 325 (good discussion of what a tribunal should include in its
return to the court when served with a certiorari application)
- Ontario (Liquor Control Board) v. Lifford
Wine Agencies Limited,
unreported, Ont. C.A.,
July 18, 2005
(Board should have allowed subpoenas to issue on abuse claim)
- Pritchard
v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809 (solicitor client privilege
and administrative tribunals; privileged material need not be disclosed)
- Deloitte & Touche LLP v. Ontario
Securities Commission,
[2003] 2 S.C.R. 713 (principles governing orders for production of
documents and information)
- Mattina v. Workplace Health,
Safety and Compensation Commission, 2005 NBCA 8 (when does a binding decision issue?
do all have to sign?)
- Tahmourpour v. Canada (Solicitor
General),
2005 FCA 113 (duty to conduct a full investigation when responsible for
investigating; investigation found deficient)
- Hutchinson v. Canada (Minister of the Environment), [2003] 4 F.C. 580 (C.A.) (disclosure
is satisfactory if case to met before the tribunal is disclosed - no right
to have everything the investigators had in their hands; on the facts, no
unfairness in the investigation)
- Waxman
v. Ontario Racing Commission
(2006), 216 O.A.C. 353 (Div.
Ct.) (failure to give disclosure), applying Markandey v Ontario
(Board of Ophthalmic Dispensers) [1994] O.J. No. 484 (O.C.G.D.).
- Fuda v. Ontario (Information and
Privacy Commissioner)
(2003), 65 O.R. (3d) 701 (Div.
Ct.) (duty to give disclosure in order to
permit party to make out case)
- Thomas v. Assn. of New Brunswick Registered Nursing
Assistants
(2003), 230 D.L.R. (4th) 337 (N.B.C.A.) (exclusion from hearing of
non-lawyer agent for a party was procedurally unfair)
- Society Promoting Environmental Conservation v. Canada
(Attorney General),
[2003] 4 F.C. 959 (Fed. C.A.)
(recent example, of which there are many, of a review court overlooking
procedural errors when there was no real prejudice)
- West
v. W.S.I.B.,
2005 CanLII 34354 (Sept. 22, 2005) (Div. Ct.)
(failure to consider a departure from procedures in exceptional
circumstances)
- Warren
v. Criminal Injuries Compensation Board (2005), 262 D.L.R. (4th)
144 (Div. Ct.)
(failure to consider a departure from procedures in exceptional
circumstances)
- Universal Settlements International Inc. v. Ontario
Securities Commission
(2003), 67 O.R. (3d) 670 (Div.
Ct.) (jurisdiction to compel testimony and
production of documents)
- McNaught v. Toronto Transit
Commission
(2005), 74 O.R. (3d) 278 (C.A.)
(procedural fairness not infringed by consolidating two hearings; Board
master of its own procedure)
- Kalin v. Ontario College of
Teachers
(2005), 75 O.R. (3d) 523 (C.A.) (procedural fairness: arbitrary failure to
adjourn and failure to consider relevant factors pertaining to
adjournment; decision to accept a transcript of evidence of the
complainant from an earlier criminal trial rather than requiring the
complainant to testify was set aside on the basis of failure to consider
all relevant factors; findings of fact in earlier criminal judgment were
wrongly adopted without considering factors, such as the fact that the
accused doctor did not testify in those proceedings)
- Syndicat des employés
de la function publique de l'Ontario
et al. v. Collège des Grands
Lacs et al. (2005), 200 O.A.C. 101 (Div.
Ct.) (absent a statutory requirement, a Minister need not hold hearings or
direct consultations with teachers or students before closing a college
because it was a "public policy decision")
- Graywood Investments Ltd. v.
Ontario Energy Board et al.
(2005), 194 O.A.C. 241 (Div.
Ct.) (person making complaint that a licensee
was not complying with its licence not entitled
to a hearing before "highly specialized" tribunal)
- Manpel v. Greenwin
Property Management et al.
(2005), 200 O.A.C. 301 (Div. Ct.) (denial of fair hearing because of
constant interjections by tribunal and interruptions by opposing party;
tribunal also misapprehended evidence and denied party a right to call
evidence without hearing submissions)
- Spiegel v. Seneca College of Applied Arts & Technology (2005), 194 O.A.C. 311 (Div. Ct.)
(pre-hearing disclosure shortly before hearing and failure to adjourn a
violation of procedural fairness)
- Canada
(Citizenship and Immigration) v. Thamotharem, 2007 FCA 198 and
Benitez
v. Canada (Citizenship and Immigration), 2007 FCA 199 (use of guidelines and policies by administrative
tribunals and regulators – do they fetter discretion?). See also Tremblay
v. Québec (Commission des affaires sociales),
[1992] 1 S.C.R. 952, IWA
v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, Maple
Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, Friends
of Oldman River Society v. Canada (Minister of
Transport), [1992] 1 S.C.R. 3 at 35, Pezim v. British Columbia (Superintendent of Brokers),
[1994] 2 S.C.R. 557 at 596, Capital
Cities Communications Inc. v. Canadian Radio-Television Commission,
[1978] 2 S.C.R. 141 at 170. Johnston v.
Alberta (Director of Vital Statistics),.2008 ABCA 188
(no legal effect given to policy on procedural issue); Canada (Attorney
General) v. Tobin, 2008 FC 740 (directive given binding effect because
of statutory regime that empowered the making of directives).
- Universal
Workers Union v. O.H.R.C.
(2006), O.A.C. 199 (Div. Ct.) (certain tribunals must respect the
adversary system; undue interference with the party’s right to control its
case); application of Hurd v. Hewitt (1994), 20 O.R. (3d) 639 (C.A.)
- Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia
(Project Assessment Director), [2004] 3 S.C.R. 550; and Mikisew Cree First Nation v. Canada (Minister of
Canadian Heritage), [2005] 2 S.C.R. 388 (duty to consult
aboriginal peoples); Dene Tha’ First Nation v.
Canada (Minister of the Environment) (2006),
303 F.T.R. 106 (aff’d in part, Canada
(Environment) v. Imperial Oil Resources Ventures Ltd., 2008 FCA 20) (application
to National Energy Board).
(2) Impact
of earlier proceedings, use of evidence from earlier proceedings, other
evidence rulings
Bottom line observations from the recent cases: Do not
automatically assume that earlier court decisions and the factual findings in
them, e.g. decisions of criminal courts, are binding. In some circumstances
they have to be regarded with caution. Follow the tests in the Supreme Court's
recent decisions strictly.
- Danyluk v. Ainsworth
Technologies Inc.,
[2001] 2 S.C.R. 460 (res judicata and issue estoppel)
- Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77 (abuse of
process arising from relitigation)
- Ontario (Registrar, Motor Vehicle Act) v. Jacobs (2004), 69 O.R. (3d) 463 (Div. Ct.) (relitigating issues in earlier criminal proceedings;
board should have followed earlier decision)
- Ontario (Liquor Control Board) v. Lifford
Wine Agencies Limited,
unreported, Ont. C.A.,
July 18, 2005
(extremely important ruling concerning privilege over an internal Board
investigation)
- R.
v. Find,
[2001] 1 S.C.R. 683 (judicial notice; and see s. 16(a) of the Statutory
Powers Procedure Act (Ontario))
(3) Duty
to give reasons
Bottom line observations from the recent cases: There has
been an explosion of litigation in this area. Today, this is the single most
frequent area where tribunals get reversed. Those making multi-faceted policy decisions
are subject to less stringent requirements or no requirements at all. For all
others, a counsel of prudence is to always err on the side of giving reasons
that set out conclusions and findings clearly, with the rationales for them set
out clearly and comprehensively, with specific reference to the evidence in the
record.
- Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
- Canadian
Association of Broadcasters v. Society of Composers, Authors and Music
Publishers of Canada (2006), 54
C.P.R. (4th) 15 (F.C.A.) (excellent discussion of reasons that asserted
conclusions without displaying any chain of reasoning in support)
- Gray
v. Ontario (Director, Disability Support Program) (2002), 212 D.L.R. (4th) 353 at
364 (Ont. C.A.)
("The obligation to provide adequate reasons is not satisfied by
merely reciting the submissions and evidence of the parties and stating a
conclusion. Rather the decision maker must set out its findings of fact
and the principal evidence upon which those findings were based. The
reasons must address the major points in issue. The reasoning process
followed by the decision maker must be set out and must reflect
consideration of the main relevant factors.")
- Corp. of the Canadian Civil Liberties Assn. v. Ontario
(Civilian Commission on Police Services) (2002), 61 O.R. (3d) 649 (C.A.) (the
test is whether the reviewing court can do its task)
- R. v. Sheppard, [2002] 1 S.C.R. 869
- R. v.
Brown
(“generic reasons” are inadequate; it is necessary to craft reasons
related to this party and this case)
- Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 55 ("tenable explanation")
- Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 ("…a
more precise and rigorous justification … would not only have given … a
better understanding of the municipality's decision, it also would have
given its decision-making process the required transparency and the
appearance of procedural fairness.")
- Lee v. College of Physicians and Surgeons (2003), 66 O.R. (3d) 592 (Div. Ct.)
(duty to give reasons)
- Megens v. Ontario Racing
Commission
(2003), 64 O.R. (3d) 142 (Div.
Ct.) (duty to give reasons)
- N.(R.) (Litigation Guardian Of) v. Ontario (Minister
of Community, Family and Children's Services) (2004), 70 O.R. (3d) 420 (duty
to give reasons; disclosure of criteria for decision in advance of the
hearing)
- Provincial Dental Board of Nova Scotia v. Dr. Clive Creager,
2005 NSCA 9
- Casavant v. Professional Ethics
Committee of the Saskatchewan Teacher's Federation, 2005 SKCA 52
- Donnini v. Ontario Securities
Commission,
unreported, Ont. C.A.,
January 28, 2005
("cavalier" reasons on costs struck down; reasoning process not
fair)
- Kowalczyk v. Peel Access to
Housing,
2005 CanLII 1082 (Ont. Div. Ct.) (the
requirement for reasons may be less demanding in the case of
"polycentric" decisions)
- Kalin v. Ontario College of
Teachers
(2005), 75 O.R. (3d) 523 (C.A.)
(reasons must be afforded on a significant or contentious point
particularly when it will have an impact on the outcome of the hearing)
- Gray v.
Ontario (Disability Support Program) (2002), 59 O.R. (3d) 364 (C.A.)
- Syndicat des employés
de la function publique de l'Ontario
et al. v. Collège des Grands
Lacs et al. (2005), 200 O.A.C. 101 (Div.
Ct.) (no requirement to give reasons when making "public policy
decision", in this case the closing of a school)
- Lerew v. St. Lawrence College of
Applied Arts and Technology
(2005), 196 O.A.C. 363 (Div. Ct.) (a conclusion offered without reasons
was inadequate given the impact of the decision on the party)
- Smith v. Human Rights Commission (Ont.)(2005), 195 O.A.C. 323 (Div. Ct.) (a
finding that a human rights infringement was not reckless or wilful required reasons)
- Veri v. Hamilton (City) (2005), 192 O.A.C. 99 (Div. Ct.)
(inadequate reasons: failure to identify findings of fact and the basis
for them was unfair to party and hindered the reviewing court)
- C.P. et al. v. Criminal Injuries
Compensation Board
(2005), 193 O.A.C. 124 (Div. Ct.) (inadequate reasons: tribunal issued
reasons with a portion blacked out for confidentiality reasons; should
have issued proper reasons, with a sealing order; further, the tribunal
only listed its conclusions, not the reasons for them; cannot rely on
evidence kept secret from a party)
- Hawrylyshyn v. Ontario (Director Employment Standards)
(2005), 197 O.A.C. 50
(4) Bias
and lack of independence
Bottom line observations from the recent cases: Those
complaining of bias or lack of independence still have to satisfy a very
strict, demanding test and the complaint must not be idly made, without
evidence in support. It continues to be appropriate for other regulatory
functions to be mixed with adjudicative functions but problems can arise when
the individuals on a particular adjudicative panel have other roles. The
requirements of impartiality and independence are common law requirements that
can be ousted or modified by statute. Constitutional challenges in this area
have largely failed.
- Ocean Port Hotel Ltd. v. British Columbia (Manager, Liquor
Control and Licensing Branch),
[2001] 2 S.C.R. 781
- Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884
- TELUS Communications Inc. v. Telecommunications Workers
Union, 2005
FCA 262 (good recent review of classic statements, general principles and
tribunal defences)
- Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at para. 60 (classic recent statement of principles)
- SOS-Save
our St. Clair Inc. v. Toronto (City) (2005), 78 O.R. (3d) 331 (Div. Ct.) (dissenting reasons here)
- Roeder v. British Columbia Securities Commission, 2005 BCCA 189 (an alleged
conflict of interest must be real)
- Imperial
Oil Ltd. v. Quebec (Minister of the Environment), [2003] 2 S.C.R. 624 (no
conflict of interest or bias if decision-maker is being sued civilly by
the same party in another matter; also "political" decisions do
not require the same standard of impartiality as adjudicative decisions)
- Mugesera v. Canada (Minister of
Citizenship and Immigration),
2005 SCC 39 (there must an an evidentiary basis
to the allegations, not speculations)
- Ocean Port Hotel Ltd. v. British Columbia (The General
Manager, Liquor Control and Licensing Branch) (2002), 213 D.L.R. (4th) 273
(B.C.C.A.) (institutional connection between investigators and hearing
panel not impermissible bias)
- Stetler v. Ontario Flue-Cured
Tobacco Growers' Marketing Board (2005), 200 O.A.C. 209 (C.A.) (reviewing court
dismisses bias objection that was not raised before the tribunal)
- Gardner v. Ontario Civilian Commission on Police Services (2005), 72 O.R. (3d) 285 (Div. Ct.)
(panel exercising both investigatory and adjudicative functions found to
be biased)
- McCormack
v. Toronto Police Services Board (2005), 205 O.A.C. 17 (Div. Ct.)
- Austin v. Ontario
Racing Commission, 2007 ONCA 587
(5) Undue
delay and abuse of process by tribunal
Bottom line observations from the recent cases:
Complainants must satisfy a very strict test. It seems that establishing severe
prejudice is a prerequisite to relief.
(6) Legitimate
expectations
Bottom line observations from the recent cases: Legitimate
expectations as to procedure are enforceable but legitimate expectations as to
substantive outcomes are not. However, this distinction may now be blurred by
the Mount Sinai case.
(7) Regulatory
investigations: when does Charter apply?
Bottom line observations from the recent cases: An
administrative body that compels testimony and production of documents for
purely regulatory purposes is subject to low or non-existent Charter scrutiny
under ss. 7 and 8 of the Charter. However, an administrative body that does so
for the purposes of "penal" or criminal purposes (as defined in
Jarvis) is subject to the full limitations and/or requirements imposed by ss. 7
and 8 of the Charter. Remedies for Charter breach continues
to be a very uncertain issue in this area.
(8) Disciplinary
cases / licence violations (standard of review and
penalty)
Bottom line observations from the recent cases: It is now
beyond doubt that disciplinary tribunals can impose severe penalties, including
penalties to achieve general deterrence within a particular discipline (e.g. a
significant financial penalty which in substance is indistinguishable from the
sort of "fine" imposed in criminal proceedings), and be accorded
deference by reviewing courts. However, the requirements of natural justice can
be most demanding.
- Re Cartaway Resources Corp., [2004] 1 S.C.R. 672 (penalties
and sanctions)
- The British Columbia College of Teachers v. P.E.M., 2005 BCCA 76 (interesting
decision re penalty; publication ban)
- Hogan v. British Columbia Securities Commission, 2005 BCCA 53 (penalty;
significant application of Cartaway)
- British Columbia (Securities Commission) v. C.W.M. (2003), 226 D.L.R. (4th) 393 (B.C.C.A.)
(good discussion of the nature of securities hearings; discussion of
attenuated nature of Charter protections in the case of true regulatory
proceedings as discussed by the Supreme Court in Branch v. British
Columbia (Securities Commission), [1995] 2 S.C.R. 3)
- Dr. Henderson v. The College of Physicians and Surgeons of
Ontario
(2003), 65 O.R. (3d) 146 (Ont. C.A.) (high standard of
fairness when "professional life" is at risk; statutory
provisions to be interpreted strictly)
- Stetler v. Ontario Flue-Cured
Tobacco Growers' Marketing Board, unreported, Ont. C.A., July 8, 2005 (no higher standard of
proof required when "professional life" is at risk)
- Ocean Port Hotel Ltd. v. British Columbia (The General
Manager, Liquor Control and Licensing Branch) (2002), 213 D.L.R. (4th) 273
(B.C.C.A.) (institutional connection between investigators and hearing
panel not impermissible bias)
- Donnini v. Ontario Securities
Commission,
unreported, Ont. C.A.,
January 28, 2005 ("cavalier" reasons on costs struck down;
reasoning process not fair)
- Megens v. Ontario Racing
Commission (2003),
64 O.R. (3d) 142 (Div. Ct.)
(undue penalty)
- Watt
v. Law Society of Upper Canada (2005), 255 D.L.R. (4th) 701 (Div. Ct.)
(undue penalty)
(9) Competing
Tribunals
Bottom line observations from the recent cases: Follow the
specific tests set out by the Supreme Court. The analysis is a very practical
one based on which forum is "better" (as defined by the Supreme Court
in its tests). However, as always, statutory provisions rule and in this area,
words of exclusive jurisdiction in legislation will be respected by the courts.
(10) Refusal
to look at the law beyond one’s own governing statute
B. Before
the judicial review court
(1) Which
court?
- Section 18 of the Federal Courts
Act (Federal Court has exclusive jurisdiction over administrative law
relief "against any federal board, commission or other
tribunal")
- Wakeford v. Canada (2002), 58 O.R. (3d) 65 (C.A.)
(matter should be in Federal Court)
- Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 (C.A.)
(civil action did not in substance constitute administrative law relief
"against any federal board, commission or other tribunal")
(2) Procedure in
judicial review proceedings
Bottom line observations from the recent cases:
"Technical" rules, such as admissibility of evidence and service of notices
of constitutional question, continue to matter.
(3) Preliminary objections:
jurisdiction of the reviewing court
Bottom line observations from the recent cases: More and
more, reviewing courts in Ontario
are parsing the language of s. 1 of the JRPA in order to determine whether they
have jurisdiction. This is likely to be a growth area in administrative law.
(4) Preliminary
objections: review of interlocutory tribunal rulings
Bottom line observations from the recent cases: There have
been some very aggressive refusals by reviewing courts to consider
interlocutory tribunal decisions. If a challenger tries this, try an immediate
motion to quash (see York
Regional Police (Chief of Police), above).
- Schilthuis v. College of
Veterinarians of Ontario,
2005 CanLII 1083 (Ont. Div. Ct.) at para. 9 (rarely permitted; there are very limited
exceptions)
- College of Physicians and Surgeons of Ontario v. Shiu-Yuen,
2005 CanLII 2037 (Ont. Div. Ct.) (review allowed;
exceptional circumstances)
- Chrétien
v. Canada (Attorney General), [2005] F.C.J. No. 1141 (Proth.); Jaouadi v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1714 (T.D.) (proceedings before
administrative tribunals should not be interrupted by interlocutory
reviews)
- Sears
Canada Inc. v. Davis Inquest (Coroner of) (1997),102 O.A.C. 60 at para. 9 (Div.Ct.)
- York
Regional Police (Chief of Police)
v. Ontario Civilian Commission on Police Services (2005),
193 O.A.C. 308 at para. 25 (Div. Ct.)
- Nova
Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’
Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, at para.
29
- Huerto v. College
of Physicians and Surgeons (2001), 211 Sask.R. 200 at paras. 25-35 (Q.B.)
- Shaughnessy v. Investment Dealers Assn. of Canada (1999), 125 O.A.C. 265 at para.
16 (Div. Ct.)
- Sandringham Place Inc. v. Ontario (Human Rights Commission) (2001), 202 D.L.R. (4th) 301 at para. 22 (Div. Ct.)
- Ontario
College of Art v. Ontario (Human Rights
Commission) (1993), 11 O.R. (3d) 798 (Div.Ct.)
- Falkiner v. Ontario (Ministry of Community and Social Services), [1996]
O.J. No. 3737, at para. 117 (Div.Ct.)
- Partington v. Complaints Inquiry Committee (2005) 256 D.L.R. (4th) 653 at paras. 15-17 (Alta.C.A.)
- Jafine v. College of Veterinarians of Ontario (1991), 5 O.R. (3d) 439 at para. 444 (Gen. Div.)
- Hughes v. College of Physicians and Surgeons of Ontario (1994), 112 D.L.R. (4th)
253 (Ont. Div. Ct.).
- Jaouadi v. Canada (Minister of Citizenship and
Immigration) (2003), 257 F.T.R. 161 at para. 21 (F.C.) (can go for
review when there are special circumstances)
- Kelly
v. Ontario, 2008 CanLII 22557 (Ont. S.C.J.)
(5) Preliminary
objections: delay, prematurity, mootness, adequate
alternative remedy and waiver before the tribunal
Bottom line observations from the recent cases: This
remains a fertile area for objection.
- Harelkin v. University of Regina, [1979] 2 S.C.R. 561 (save in exceptional
circumstances, one must exhaust administrative remedies before proceeding
to court on a judicial review); Canadian
Pacific Ltd. v. Matsqui Indian Band, [1995]
1 S.C.R. 3 and Calgary
(City) v. ATCO Gas and Pipeline Ltd., 2007 ABCA 133 (should pursue
jurisdictional points before the administrative tribunal before proceeding
to judicial review); Howe
v. Institute of Chartered Accountants of Ontario (1994), 19 O.R.
(3d) 483 (C.A.) (this principle may extend to exhausting administrative
powers of reconsideration); Air
Canada v. Lorenz, [2000] 1 F.C. 494 (T.D.) (principle extends to
issues of bias)
- Becker v. City Park Co-operative Apartments Inc. (2005), 193 O.A.C. 52 (Div. Ct.)
(judicial review quashed because there was an adequate alternative remedy)
- Consumers’
Association of Canada (Manitoba) Inc. v. Manitoba (Public Utilities Board), 2006 MBCA 156 (judicial review
quashed because there was an adequate alternative remedy)
- Ontario Conference of Judges v. Ontario (Chair, Management
Board)
(2005), 71 O.R. (3d) 528 (Div.
Ct.) (dismissal of judicial review for delay;
dismissal for failure to exhaust internal remedies); PPG Industries Canada Ltd. v. Canada (Attorney General),
[1976] 2 S.C.R. 739 (undue delay)
- Sommers v. Ontario Civilian
Commission on Police Services,
unreported, Ont. Div. Ct.,
May 10, 2005
(good discussion of prematurity and mootness)
- Duffin Capital Corp. v. Ontario
(Minister of Municipal Affairs and Housing) (2005), 198 O.A.C. 192 (Div. Ct.)
(judicial review dismissed for prematurity)
- Stetler v. Ontario Flue-Cured
Tobacco Growers' Marketing Board(2005), 200 O.A.C. 209 (C.A.) (reviewing court
dismisses bias objection that was not raised before the tribunal)
- Syndicat des employés
de la function publique de l'Ontario
et al. v. Collège des Grands
Lacs et al. (2005), 200 O.A.C. 101 (Div. Ct.)
(dismissal of judicial review for delay)
(6) Proper
method of statutory interpretation
Bottom line observations from the recent cases: Most
judicial reviews concern whether a tribunal has misinterpreted its statute. Recent cases from the Supreme Court supply "boilerplate
wording" that should be used in every case.
(7) Standard
of review - general
Bottom line observations from the recent cases: Dunsmuir
has collapsed the three-level standard of review into two. All standard of review questions for the
foreseeable future must start with a careful review of Dunsmuir. Cases before Dunsmuir are
relevant only because Dunsmuir requires that a similar set of factors to the
former “pragmatic and functional test” be considered, and because Dunsmuir does
not appear to change the level of deference to be given to tribunals.
§ Privacy
Commissioner of Canada v. Blood Tribe Department of Health, 2008 SCC 44 (adoption of correctness
as the standard of review in recognition of the fact that solicitor and client
privilege is “fundamental to the functioning of our legal system.”)
§ Redeemer
Foundation v. Canada (National Revenue), 2008 SCC 46 (possibly an issue of vires relating to the validity of
a seizure, resulting in correctness standard)
§ United
Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004]
1 S.C.R. 485 (example of a “true jurisdictional
question,” which, according to Dunsmuir in para. 59, attracts
correctness review)
§ United
Brotherhood of Carpenters & Joiners of America, Local 1985 v. Graham Construction & Engineering Ltd., 2008 SKCA 67, at para.
6 (per Jackson J.A.) (unreasonableness in
result; a decision that conflicted with earlier Board decisions; so-called Wednesbury
review?); contra (?) Domtar
Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles, [1993] 2 S.C.R.
756 at 800-801 (attempted distinguishing in United
Brotherhood, at para. 89).
- Council
of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15 at paras. 101-103 (possible merging of the three
standards into two, with the majority suggesting that the description of
the “reasonableness” standard in Ryan could apply in “patent
unreasonableness” cases; also courts should be reluctant to brand parts of
decisions as “jurisdictional” in nature, necessitating correctness review)
- Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 (pragmatic
and functional test; discussion of the reasonableness standard; a
"patently unreasonable decision" is "so flawed that no
amount of curial deference can justify letting it stand"; "If
any of the reasons that are sufficient to support the conclusion are
tenable in the sense that they can stand up to a somewhat probing
examination, then the decision will not be unreasonable and a reviewing
court must not interfere.")
§ Maystar General Contractors Inc. v. International Union of
Painters and Allied Trades, Local 1819 (2008), 235 O.A.C. 227
(Ont. C.A.) (deferential standard on fact-based decision regarding accepting
late-filed material)
- Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (important
on "nature of the question" part of the pragmatic and functional
test)
- Stetler v. Ontario Flue-Cured
Tobacco Growers' Marketing Board, unreported, Ont. C.A., July 8, 2005 (suggestion
that if there are two administrative tribunal decisions, here a Board decision
and then an administrative appeal to a Tribunal, the second of the two
decisions is the proper subject-matter for review)
(8) Standard
of review - labour arbitrations
Bottom line observations from the recent cases: Voice
Construction, which some felt changed the standard of review for labour arbitrations and which suggested that "patent
unreasonableness standard" might be a relatively rare standard, has been
distinguished (and ignored) by provincial Courts of Appeal. Dunsmuir
has provided clarification.
- Dunsmuir
v. New Brunswick, 2008 SCC 9 at paras. 48,
54, 55, 68, 122 and 128
- Toronto
(City) v. C.U.P.E., [2003] 3 S.C.R. 77, at para. 68
- Voice Construction Ltd. v. Construction General Workers
Union, Local 92,
[2004] 1 S.C.R. 609
- Teamsters Local Union 938 v. Lakeport Beverages, a Division
of Lakeport Brewing Corp.,
[2005] O.J. No. 3488 (C.A.)
- Canadian Union of Public Employees, Local 1773 v. Town of Shediac,
2005 NBCA 20
- Newfoundland (Minister of Forest Resources and Agrifoods) v. A. L. Stuckless
and Sons Ltd.,
2005 NLCA 11 (applies "patent unreasonableness" standard despite
language in Voice that that standard will be rare)
(9) First
Nations issues
Bottom line observations from the recent cases: Native
peoples are owed special consultation rights, in addition to the rights that
exist as part of "procedural fairness" doctrine.
(10) Municipal
by-law issues
- The
Adult Entertainment Association of Canada v. Ottawa (City), 2007 ONCA 389 (good discussion of a series of grounds
for attacking by-laws: vires, colourability, void for vagueness, discrimination,
reasonableness)
- 114957
Canada Ltée (Spraytech,
Société d'arrosage) v.
Hudson (Town), [2001] 2 S.C.R.
241 (interpreting by-laws)
- R.
v. Sharma, [1993] 1 S.C.R. 650 and R.
v. Greenbaum, [1993] 1 S.C.R. 674 (discrimination; reasonableness)
- Canadian
Pacific Railway Co. v. Vancouver (City), [2006] 1 S.C.R. 227 (whether
the City owed procedural fairness to an affected company before adopting a
development plan by-law; semble, a recognition of procedural fairness for the
“legislative” function of enacting subordinate legislation)
(11) Standing
of tribunals to make submissions on judicial review
Bottom line observations from the recent cases: The
movement away from Northwestern Utilities continues. The Supreme Court will
likely consider the issue soon.
- Northwestern
Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684
- Canadian Association of Industrial, Mechanical and Allied
Workers, Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983
- Canadian Union of Public Employees (Airline Division) v.
Canadian Airlines International Ltd., [2000] F.C.J. No. 220 (C.A.)
- Children's Lawyer for Ontario v. Goodis (2005), 75 O.R. (3d) 309 (C.A.); Enbridge
Gas Distribution Inc. v. Ontario (Energy Board) (2006), 210 O.A.C.
4 (C.A.) (applying Goodis)
- Milner
Power Inc. v. Alberta Energy and Utilities Board, 2006 ABQB 537 (Alta. Q.B.)
- Chrétien
v. Canada,
2005 FC 591 (T.D.)
- Genex Communications Inc. v.
Canada (A.G.),
unreported, Fed. C.A.,
September 1, 2005
- Lang v. British Columbia (Superintendent of Motor
Vehicles),
2005 BCCA 244
- Bransen Construction Ltd. v. C.J.A., Local 1386 (2002), 39 Admin L.R. 1
(N.B.C.A.) (cannot make submissions designed to supplement tribunal's
reasons for judgment)
(12) Others'
standing
C. Constitutional
considerations
(1) Tribunal's
jurisdiction to deal with constitutional and quasi-constitutional issues
Bottom line observations from the recent cases: Martin
clarifies the law in the area. But the different tests for
"invalidity" issues and s. 24(1) issues must be kept in mind.
Practical and procedural issues remain.
(2) Standard
of review in constitutional cases
Bottom line observations from the recent cases: This is an
area of great uncertainty that requires clarification.
§ Lake
v. Canada (Minister of Justice),
2008 SCC 23 (inexplicably contrary to the statement in Multani that the standard of
review of administrative decisions on constitutional matters are subject to
correctness review, constitutional issues in the extradition context call for
deference). In this regard, it seems to
be consistent with Suresh
v. Canada (Minister of Citizenship & Immigration), [2001] 1 S.C.R. 3 and Ahani v. Canada (Minister of Citizenship & Immigration),
[2001] 1 S.C.R. 72.
- Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504 at para. 31 (pure questions of constitutional law
reviewable on correctness standard)
- Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585 (same)
- Pinet v. St. Thomas Psychiatric
Hospital,
[2004] 1 S.C.R. 528 at para. 27 (cannot
"reweigh evidence")
- Haida Nation v. British Columbia
(Minister of Forests),
[2004] 3 S.C.R. 511 at paras 60-63 ("Absent
error on legal issues, the tribunal may be in a better position to
evaluate the issue than the reviewing court, and some degree of deference
may be required. In such a case, the standard of review is likely to be
reasonableness. To the extent that the issue is one of pure law, and can
be isolated from the issues of fact, the standard is correctness. However,
where the two are inextricably entwined, the standard will likely be
reasonableness: Canada
(Director of Investigation and Research) v. Southam
Inc., [1997] 1 S.C.R. 748.")
- Kempling v. British Columbia
College of Teachers,
2005 BCCA 327 (deferential standard applied despite s. 2(b) Charter
issues)
- TELUS Communications Inc. v. Telecommunications Workers
Union, 2005
FCA 262 (same)
- Westcoast Energy Inc. v. Canada
(National Energy Board),
[1998] 1 S.C.R. 322 (mixed fact and law findings in constitutional cases (including
constitutionally significant characterizations of fact - no deference)
- Genex Communications Inc. v.
Canada (A.G.),
unreported, Fed. C.A.,
September 1, 2005
(language suggests deference)
(3) Use
of Charter values
Bottom line observations from the recent cases: So far,
there is little scope for the use of Charter values in administrative
decision-making.
(4) Interlocutory
forays to Superior Court on constitutional issues
D. Civil
litigation against administrative bodies or concerning their decisions
(1) Cannot
circumvent or avoid tribunals' jurisdiction through civil litigation (also
adequate alternative remedy; collateral attack; relitigation)
Bottom line observations from the recent cases: Courts are
vigilant to ensure that administrative processes are respected, not
circumvented.
- R. v. Consolidated Maybrun Mines
Ltd., [1998]
1 S.C.R. 706 (collateral attack - tribunal findings cannot usually be
attacked later in civil litigation)
- Danyluk v. Ainsworth
Technologies Inc.,
[2001] 2 S.C.R. 460 (res judicata and relitigation)
- Toronto (City) v. C.U.P.E., Local 73, [2003] 3 S.C.R. 77 (abuse of
process arising from relitigation; earlier
administrative proceedings can count)
- Vaughan v. Canada, [2005] 1 S.C.R. 146 (grievance regarding denial of
benefits should have followed administrative process; civil action for the
benefits does not lie)
- Okwuobi v. Lester B. Pearson
School Board; Casimir v. Quebec (Attorney
General); Zorrilla v. Quebec (Attorney General), [2005] 1 S.C.R. 257 at paras. 38-40 (general rule against raising
constitutional issues in a judicial review or in another court proceeding
when those issues could have been raised in a tribunal that had
jurisdiction to deal with them); aggressively applied in Sazant v. College of Physicians and Surgeons,
unreported, Ont. S.C.J. per
Bellamy J., July 11, 2007 to prevent going to court before the issue is
presented to the tribunal, but seemingly reversed in Kelly v. Ontario.
- Violette v. New Brunswick Dental
Society
(2004), 267 N.B.R. (2d) 205 (N.B.C.A.) (A party who abandons the right to
participate in a tribunal hearing does not entirely waive the right to
challenge the tribunal's decision, either on its merits or with respect to
issues that could have been raised during the proceedings)
- Canada v. Grenier, 2005
FCA 348 (F.C.A.); Tremblay v.
Canada, 2006 FCA 90 (C.A.) and Renova Holdings Ltd. v. Canadian Wheat Board,
2006 FC 71 (recent Federal Court cases on civil collateral attacks against
decisions)
- Keewatin
v. Ontario (Minister of Natural Resources) (2003), 66 O.R. (3d) 370 (Div. Ct.) (Ontario’s
“utilitarian” approach)
(2) Immunity
from suit for invalid legislation
Bottom line observations from the recent cases: the
immunity is weakening
(3) Negligence
liability
Bottom line observations from the recent cases: Duties to
third parties seem sharply curtailed. But duties to persons proximate to
administrative bodies are vigorously (unfairly?) enforced.
- Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2 (Anns test is to be applied)
- R.
in Right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205 (statutes
can define the content of the standard of care)
- Just v. British Columbia, [1989] 2 S.C.R. 1228
(policy/operational distinction; latter is actionable, former is not)
- Brown v. British Columbia (Minister of Transportation and
Highways),
[1994] 1 S.C.R. 420 (same)
- Comeau's Sea Foods Ltd. v.
Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 (tough to
establish regulatory negligence)
- Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562 (important
case regarding proximity - regulator's duty to third parties)
- Cooper v. Hobart, [2001] 3 S.C.R. 537 (same)
- Ingles v. Tutkaluk Construction
Ltd., [2000]
1 S.C.R. 298 (regulatory negligence established)
- Ryan v. Victoria (City), [1999] 1 S.C.R. 201 (same; good
discussion of the defence of statutory
authority)
- Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (important case
confirming that police can be liable in negligence to suspects)
- Wynberg v. Ontario, 2006 CanLII
22919 (Ont. C.A.)
- Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 (no duty of care owed by
treatment centre to family of child in need of protection)
- Holland
v. Saskatchewan, 2008 SCC 42 (negligent failure to implement
court order; reaffirmation that breach of a statutory provision or excess
of jurisdiction does not automatically mean there is a breach of a duty of
care: The
Queen in right of Canada v. Saskatchewan Wheat Pool, [1983]
1 S.C.R. 205)
(4) Malicious
prosecution
(5) Restitution
Bottom line observations from the recent cases: Kingstreet revolutionizes this area and does away with some
of its earlier, limiting jurisprudence (e.g. Air Canada)
(6) Abuse
of public office
Bottom line observations from the recent cases: Flavour of the month in public law litigation circles.
Beware the letter from an aggrieved person that warns that statutory authority
is being exceeded.
(7) Bad
faith liability
Bottom line observations from the recent cases: expansion of
liability due to lowering of the standard of evidence required to prove bad faith?
(8) Charter
damages
Bottom line observations from the recent cases: continued
uncertainty regarding when administrative actors can be used for damages
arising from a Charter breach.
- Canada
(Attorney General) v. Hislop, [2007] 1 S.C.R. 429
- Mackin v. New Brunswick
(Minister of Finance); Rice v. New Brunswick, [2002] 1 S.C.R. 405
("clearly wrong", "bad faith" or "abuse of
power" the requirement; query whether mere negligence can suffice)
- Guimond v. Quebec (Attorney
General),
[1996] 3 S.C.R. 347 (bad faith needed)
- Canada
(Attorney General) v. Hislop, 2007 SCC 10 (lengthier discussion of requirements for damages
claim; discussion on limits on retroactive monetary claims)
- Mammoliti v. Niagara Regional Police Service (2007), 219 O.A.C. 340 (Ont. C.A.) (liability for a constitutional tort requires proof of wilfulness
or mala fides – to the
same effect, McGillivary v. New Brunswick (1994), 116 D.L.R. (4th) 104
at 108 (N.B.C.A.), contra Morin
v. Reg. Admin. Unit #3 (PEI) (2005), 254
D.L.R. (4th) 410 (P.E.I. C.A.)