Canadian Administrative Law

Analytical Process Map

Does admin law apply?

Right to challenge action/decision of ADMs
Internal challenges
External challenges (statutory appeals and Judical review)
Initial Admin law remedies
Query The Court's discretion to deny challenges

The threshold test—is a duty of fairness owed?

What is the content of the duty?
The right to be heard
Proced The right to an unboased decision maker
ural Remedies
Farines
s
Defects

Apply Vavilov standard of review framework

Substat Applying the standard to the decision/reasons
ive Is it reasonable or unreasonable?
Defects Is it correct or incorrect?
Remedies
in the
Decisio
n/Reas
ons

Analyzing Administrative Law Problems

CONTENTS
INITIAL QUERY........................................................................................................................................2
PROCEDURAL ISSUES—THE DUTY OF FAIRNESS........................................................................5

_____________
2019 Page |1
 Canadian Administrative Law
Analytical Process Map

SUBSTANTIVE REVIEW—DECISION/REASONS & THE STANDARD OF REVIEW.................9

INITIAL QUERY

DOES ADMIN LAW APPLY?

 Is it a public body making a decision?

IS THERE A RIGHT TO APPEAL/RECONSIDERATION/REVIEW?

 Check the enabling statute – it usually will oust common law. Does it refer to
appeal, reconsideration, and judicial review?

o Exhaust all internal review/appeal mechanisms BEFORE proceeding to

JR. Otherwise court may find the JR application premature.

 If YES … is it through internal mechanisms (reconsideration/appeal within the

tribunal) or external mechanisms (an appeal to the courts)?

o What is the scope of the review (e.g., on a question of law only)?

o Are there any preconditions (e.g., time limits, final decisions only)?
o Is it a federal or provincial ADM (statute may spell out which court)?
o Is the standard/grounds of review spelled out in the statute?
o What are the available remedies? Are they limited? Can the reviewing
decision-maker substitute its own decision?

IF NO STATUTORY RIGHT TO APPEAL OR IF RIGHT IS LIMITED BY ENABLING

LEGISLATION THEN PROCEED TO AN APPLICATION FOR JUDICIAL REVIEW

 Courts have jurisdiction to review through JUDICIAL REVIEW (s. 96 and

Crevier) – In Ontario -file an application to Divisional Court.

 A party seeking to challenge ADM’s action or decision through JR should

determine:

o Whether the decision-maker (the tribunal) is a public body

o Whether party has standing to challenge the decision
_____________
2019 Page |2
 Canadian Administrative Law
Analytical Process Map

o Which court party should apply to for judicial review

o Whether the application for JR is within the time limits
o Whether the party has exhausted all other adequate means of challenge
o Whether the remedies available address “success”

ADMIN LAW REMEDIES—WHAT IS THE PROBLEM AND WHAT REMEDY ARE

YOU SEEKING?

 Prerogative Writs

o Certiorari (to quash or set aside a decision)

o Prohibition (to order a tribunal not to proceed)
o Mandamus (to order the performance of a public duty)
o Declaration
o Habeas corpus and quo warranto

 Private Law Remedies

o Money/damages
o Monetary damages for Charter breaches
o The special tort of misfeasance in (or abuse of) public office

Examples:

 Substantive Defects: writs, declaration, private remedies (money/damages)?

 Procedural Defects: quashing the decision, Charter remedies?

*REMEMBER that the court may still deny remedies based on discretionary grounds.

DISCRETION TO DENY THE APPLICATION FOR JUDICIAL REVIEW

 Is there any reason why the court may decline to exercise its jurisdiction and
deny the application?

o Availability of alternative remedies

o Prematurity

_____________
2019 Page |3
 Canadian Administrative Law
Analytical Process Map

o Mootness
o Delay
o Misconduct of applicant
o Waiver
o Balance of convenience
o Standing issues (i.e., public interest)

ARE YOU CHALLENGING PROCEDURAL OR SUBSTANTIVE DEFECTS?

_____________
2019 Page |4
 Canadian Administrative Law
Analytical Process Map

PROCEDURAL DEFECTS—THE DUTY OF FAIRNESS

DETERMINE WHETHER FAIRNESS IS REQUIRED

 The threshold test—is a duty of fairness owed?

 When a duty of fairness is not owed (exceptions/limitations)

1. The duty does not apply to investigations or advisory processes—it applies to

outcomes/decisions.

2. The duty does not apply to legislative decisions/functions

o Includes policy decisions
o Includes subordinate legislation
o Cabinet and ministerial decisions may be exempt

3. The duty does not apply to public office holders employed under contracts.

_____________
2019 Page |5
 Canadian Administrative Law
Analytical Process Map

4. The duty may be suspended or abridged in the event of an emergency.

5. Interest under section 7 of the Charter that is purely economic is not enough.

6. The duty does not apply to preliminary decisions (not the final step within the
scheme) except:
o When statute provides duty of fairness
o When truly dispositive of the complainant’s rights
o When there is a serious impact on the individual that can’t be
remedied/avoided (examine the impact on individual and proximity to the
ultimate decision)

7. The duty does not apply where it is removed or restricted by statute.

IF FAIRNESS IS OWED, WHAT IS THE CONTENT OF THE DUTY?

- WHAT DOES “FAIR” LOOK LIKE?

- IS A HIGH OR LOW LEVEL OF PROCEDURAL FAIRNESS OWED?

 To determine the general content of procedural fairness, look at the SOURCES OF

PROCEDURAL FAIRNESS

 SOURCE - The Enabling Statute - generally, if there is an enabling statute,

then that is where you go to determine the content of the duty.
o Check any regulations or rules made under that statute.
o Statute can oust what the common law would provide but statutory
language must be very clear in order to do so BUT even clear language
could be set aside in a provision in a statute if it violates a Charter right.

 SOURCE - A General Procedural Statute - special provincial level statutes

o In Ontario - Statutory Powers Procedure Act (SPPA) sets out minimum
content.

 SOURCE - Common Law (if the statute is silent or vague)

o Where the enabling statute is NOT a complete procedural code or it is
silent, or only provides for a minimal procedure or expressly denies certain
procedural safeguards, the duty to act fairly may be prescribed by the

_____________
2019 Page |6
 Canadian Administrative Law
Analytical Process Map

common law.

Applying Baker to your case: The 5 contextual considerations under the

common law

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

 SOURCE - The Constitution, the Charter, and the Canadian Bill of Rights

o Charter, s. 7: Cases involving life, liberty, and security of the person

must be made in accordance with principles of fundamental justice
(Singh’s 3 questions).

o Bill of Rights: Federal actions involving life, liberty, security, and

enjoyment of property entitled to due process; determinations concerning
rights and obligations must be made in accordance with principles of
fundamental justice.

 SOURCE - Legitimate Expectation

o Procedural fairness may be imposed where otherwise would not have

been.

USE THE SOURCES TO DETERMINE WHETHER A HIGH OR LOW LEVEL

OF FAIRNESS IS OWED AND THEN LOOK AT SPECIFC CONTENT ISSUES
AND DECIDE IF THERE HAS BEEN A BREACH OF PROCEDURAL
FAIRNESS.

SPECIFIC CONTENT ISSUES:

 THE RIGHT TO BE HEARD (examples)

o Notice: timing, sufficient content and form, manner of service
_____________
2019 Page |7
 Canadian Administrative Law
Analytical Process Map

o Evidence—Disclosure (before hearing): not absolute and subject to

exceptions (privilege, medical, national security, informants, commercially
sensitive information)
o Evidence—Admissibility: tribunals not bound by law of evidence (unless
statute says otherwise)
o Timeliness and Delay in proceedings
o Oral hearings: not necessarily required, but ask what’s at stake? (Credibility)
o Right to counsel: not absolute—is it a right to state funded counsel or just to
be represented? (Seriousness, complexity, capacity of self rep)
o Right to be present
o Right to call and cross-examine evidence
o The duty to give reasons: required where decision is significant or where
statutory right of appeal and “other circumstances” as per Baker (open ended)
o A right of appeal (narrow or broad): Nicholson where Board’s decision
found not reviewable after receiving submissions from claimant

 RIGHT TO AN UNBIASED DECISION-MAKER (examples)

 TEST: Reasonable apprehension of bias test (Liberty)
 Individual
o Antagonism during the hearing
o Association between party and decision-maker
o Involvement of decision-maker in earlier stage of process
o Prejudgment by decision-maker
o Monetary/other personal interest

 Institutional (Quebec (Régie des permis d'alcool), Lippe)

o Closeness between an agency/tribunal and government
o Sub-delegation
o Intra-agency consultation (Consolidated Bathurst, Tremblay, Ellis Don)
o Consistent decisions and guidelines
o Multiple and overlapping functions (counsel, decision-maker)

 Adjudicator’s Lack of Independence (Valente, Matsqui)

o Security of tenure—basis for removal
o Financial security—process and fixed rate

_____________
2019 Page |8
 Canadian Administrative Law
Analytical Process Map

o Administrative control—assignment of cases and resources

IF THERE IS A PROCEDURAL BREACH, WHAT IS THE REMEDY?

Procedural Breach = CORRECTNESS—no standard of review analysis

 The remedy is to quash/void the original decision

o Based on Cardinal v. Kent: Right to a fair hearing is an “independent,

unqualified right,” – a breach w i l l always render a decision invalid -
regardless of the result being correct.

 The remedy may be a Charter remedy (if available)

SUBSTANTIVE—DECISION/REASONS & THE STANDARD OF REVIEW

 REASONABLENESS or CORRECTNESS?

o Under the Vavilov framework, the default is reasonableness review.

However, that will not be the case where:

o The legislature has specifically indicated another standard, in which that

specified standard will apply;

o Likewise, where the judicial review is taking place through an appeal (i.e.,
also a legislative indication otherwise), in which case appellate standards
of review apply; or

o Questions of law. Review for correctness.

o Questions of fact. Review for palpable and overriding error.

o Questions of mixed fact and law. Review for palpable and

overriding error, unless the question law can be isolated, in which
case the question should be reviewed for correctness.

_____________
2019 Page |9
 Canadian Administrative Law
Analytical Process Map

o Where the rule of law demands correctness review, such when dealing
with constitutional questions, general questions of law of central
importance to the legal system as a whole, and questions related to the
boundaries between two or more administrative bodies.

LOOK AT THE DECISION – APPLY THE STANDARD

 If reasonableness standard applies, then ask the following:

(1) Is the decision rational, logical, and internally coherent?

• Do they justify the decision by using transparency, intelligibility, and

justifiability of the process of reasoning/decision making such that all
audiences—counsel, affected persons, and especially the losing party,
reviewing courts, other agencies, and the general public—can understand?

• Do they illustrate that the outcome is also reasonable when, as is often the
case in administrative decision making, more than one reasonable result is
possible?

(2) Is the decision justified in relation to the facts and law that constrain the
decision- maker? This includes looking to the following considerations:

• The governing statutory scheme. Does the decision accord with the
scheme’s purpose or specific statutory constraints (e.g., definitions, formulas,
principles)?

• Other statute or common law. Has, e.g., the ADM fettered its discretion or
adequately explained its adoption of common law or equitable doctrines?

• Principles of statutory interpretation. Does the decision accord with an

interpretation based on these principles?

• The evidence. Does the decision account for the parties’ key evidence?

• The parties’ submissions. Do the reasons meaningfully account for the

central issues or key arguments by the parties?

_____________
2019 P a g e | 10
 Canadian Administrative Law
Analytical Process Map

• Past practices and decisions. Is the decision consistent with the ADM’s past
practices and jurisprudence or have those been adequately distinguished?

•
The impact of the decision on the person affected. Where the decision’s
consequences are particularly harsh, does the decision explain why its
decision best reflects the legislature’s intent?
REMINDER: REQUEST SPECIFIC REMEDY (OR REMEDIES) IF DECISION
UNREASONABLE, INCORRECT AND/OR PROCEDURAL FAIRNESS BREACHED

 Prerogative Writs

o Certiorari (to quash or set aside a decision)

o Prohibition (to order a tribunal not to proceed)
o Mandamus (to order the performance of a public duty)
o Declaration
o Habeas corpus and quo warranto

 Private Law Remedies

o Money/damages
o Monetary damages for Charter breaches
o The special tort of misfeasance in (or abuse of) public office

_____________
2019 P a g e | 11