JRAA Reading Summary
Chapter Two: Governments in Miniature: the rule of law in the administrative state 2
British Columbia v. Imperial Tabacco 7
BC v. Christie 7
National Corngrowers v. Canada (Import Tribunal)(SCC, 1990) 8
Duplessis v. Roncarelli 10
Sossin, Chapter 5, From Natural Justice to Fairness, pp.147-157 10
Minister of Manpower and Immigration v. Hardayal [1978] 1 SCC 470 12
Nicholson v Haldimand Norfolk (Regional) Police Commissioners [1979] 1 RCS 13
Knight v. Indian Head School Division No. 19, [1990] 1 SCR 653 15
Fox-Decent – Procedural fairness – a Pandora’s box of legality 17
Ocean Port Hotel v BC 2001 SCC 52 20
Authorson v Canada (A-G) [2003] 2 SCR 40 22
Air Canada v AG Canada, QCCA, 2003 24
Canada (AG) v Inuit Tapirisat [1989] 2 SCR 735 26
Reference re: Canada Assistance Plan [1991] 2 SCR 525 29
Chapter 5: From Natural justice to Fairness pg 162-168 32
Dunsmuir v New Brunswick 2008 33
Maple Lodge Farms v Government of Canada, [1982] 2 SCR 2 33
Sossin, Chapter 5, From Natural Justice to Fairness, cont’d 34
Baker v Canada 1999 39
Chretien v Canada 43
Newfoundland and Labrador Nurses’ Union v Newfoundland 2011 SCC 62 47
Chapter 8: Caught Between judicial Paradigms and the Administrative State’s Pastiche: ‘Tribunal’ independence, Impartiality, and bias 49
Chapter 12, The Charter and Administrative Law 56
Suresh v Canada [2002] 60
Singh v Minister of Employment and Immigration [1985] 1 RCS 66
Charkaoui v Canada (Citizenship and Immigration [2007] 1 RCS 71
Chapter 9, Standard of Review: Back to the Future?, pp.279-91, Audrey Macklin 79
CUPE v NB Liquor Corporation, [1979] 2 SCR 227 82
Canada (Director of investigation and Research) v. Southam [1997] 84
Chapter 9, Standard of Review: Back to the Future? 86
Pushpanathan v. Canada (Minister of Citizenship and Immigration) up to 37 88
Law Society of New Brunswick v Ryan, until para24 91
Chapter 9, Standard of Review: Back to the Future? 300 – end 94
Dunsmuir 2008 97
Bastarache, Modernizing JR 101
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 103
Dr Q (James Bond style) v College of Physicians and Surgeons of BC 105
Chapter 10, Pas de Deux: Deference and Non-Deference in Action; pp. 332-342 107
Canada (AG) v Mossop [1993] 1 SCR 110
Pushpanathan v. Canada (Minister of Citizenship and Immigration) after 37 114
Chapter 10, Pas de Deux: Deference and Non-deference in Action, pp.342-79 115
Domtar inc v Quebec, 1993 121
Law Society of New Brunswick v. Ryan after para. 24 123
Canada (Fisheries and Oceans) v David Suzuki Foundation 125
Chapter 11, Administrative Discretion, 381-401 127
Chapter 12, The Charter and Administrative Law, 422-37 132
Slaight communications Inc. V Davidson [1989] 1 SCR 1038 136
Multani v Commission scolaire Marguerite Bourgeoys 138
Little Sisters Book and Art Emporium, BC Civil Liberties Association, James Eaton Deva and Guy Allen Brice v The Minister of Justice and Attorney General of BC 2000 SCC 69 145
Lake v Canada (Minister of Justice), 2008 SCC 23 148
Doré v Barreau Du Québec [2012] 149
Chapter 12, The Charter and Administrative Law, pp438-48 152
Martin v Workers’ Compensation Board of Nova Scotia and AG of Nova Scotia 2003 SCC 54 153
Montambault c Hôpital Maisonneuve-Rosemont, 2001 RJQ 893 156
Grenier v Canada 2005 FCA 348 159
AG and Jim Blackler v Michiel McArthur [2010] 3 RCS 160
Chapter 15: The Federal Court and Administrative Law 160
Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society 164
Chapter Two: Governments in Miniature: the rule of law in the administrative state
The rule of law in Theory
· No firmly agreed upon core of meaning
· Author argues that ROL can be characterized by three features
o Jurisprudential principle of legality
o Institutional practices of imposing effective legal restraints on the exercise of power
o Distinctive canadian political morality
· It seems straightforward
o ROL is the idea that law not (wo)men should rule a well ordered political community
o ROL represents a normative standard to which legal subjects can be held
o Stands for supremacy of law
§ Everyone no matter what their position is bound by the same legal rule
· Arbitrariness
o ROL prevents decision makers from exercising power in an arbitrary way
o Ex: Federal government enacting legislation that offends separation of powers
§ The procedure and doctrine is there in order to prevent such arbitrary decision making
o Decisions may also be found arbitrary on the basis that they are illogical, capricious or lacks good judgement
§ It can also be associated with a unilateral method of decision making (pg 42)
o Eg: insite decision where the minister decided not to renew insites exemption
§ The ministers decision was arbitrary in the sense that it did not further the staturoy objectives and lacked a real connection on the fact to the statutory purposes
Attributes of the Rule of Law
· A foundational ‘metaprinciple’ that organizes a set of related principles
o Separation of powers
o Legality
o Responsible government
o Principle of judicial independence
o Access to justice
o Fundamental justice
o Honour of the crown
§ Etc…
· Legality is central because it restrains the arbitrary use of power
o By constraining the actions of public officials
o Regulating the activity of law making
o Minimising harms created by the law itself
· Dicey’s principle of legality
o Unwritten constitution is best because it is less vulnerable to executive attempts to take away rights
o Grounds for judicial intervention
§ Courts are principle external check on executive
§ Constraining administrative discretion through ensuring that administrative bodies do not overstep the power given by the statute
§ Courts role is to protect and vindicate the private autonomy of affected individuals (pg44)
o The consequence of this is that administrative tribunals are looked on as almost inherently lawless and given no deference
· Fuller and Raz model
o A common set of principles which guide the conduct of all legal subjects, including public officials
o This means that you will know the law in advance and be able to know when you can act without the government interfering
o This also works through the idea that like cases will be treated alike
· Fuller and the inner morality of law
o Rule of law as the enterprise of subjecting human conduct to the governance of rules in order to create a framework for social interaction
o So people voluntarily comply
o In this conception administrative bodies are not lawless so long as they comply with the principles of legality and rol – they may even be better (46)
§ Which means they should be given deference
· Raz interpretation of ROL
o One basic idea: law must be capable of guiding the behaviour of its subjects
§ Most ROL principles can be derived from this basic idea
· ROL acts to minimize the risk of exercise of arbitrary public power
o Eg: overbreadth is a problem because it doesn’t
§ Constrain use of power
§ Provide guidance for individual behaviour
§ Widens the potential to infringe
o The isolation of law from politics
§ Though it is difficult to isolate law from politics, ROL should guarantee impartiality and fairness in decision making
§ This gives rise to judicial independence and separation of powers (48)
o Because administrative tribunal span the divide between the judiciary and the executive and have a signifigant policy making role, their independence is much less protected
Ruling the Judges
· These ideas of the ROL inform judicial understanding of their role
o Dicey thinks that courts are the true arbiters of common law checks
§ So admin tribunals would be held to a standard of correctness… little deference
o Fuller thought that litigation was not the best way to ensure accountability because many outside factors affect when an issue can be litigated
§ Availability of $$, inability of courts, no clear general rules ect (50)
o Raz places great emphasis on the ‘principles faithfull application of the law’
o Dworkin’s model
§ Legal subjects are entitled to demand a hearing in the courts
§ For him the rule of law necessarily entails the judicial determination of rights through principles interpretation in hard cases where a legal answer must be crafted by judges from existing legal sources
§ Judges not legislators are charged with guarding the moral integrity of political order
Supreme court of Canada and the rule of law
· Roncarelli illustrates one of the primary functions of the law: the control of executive arbitrariness
o The court found that Duplessis had stepped outside the bounds of power when he cancelled Roncarellis liquor license
o The ROL meant that no public official is above the law
o Furthermore, regardless of who made the decision, the substance of the decision was not in keeping with the purpose of the act: it was to punish R
§ By telling the chair of the LCC to cancel R’s license he was substituting his decision for that of the chair and so went against the legal principle of validity
§ This caused a problem though, because if the Chair had not consulted D then the decision would have been valid, although it was in bad faith
§ See Rand’s concurring decision
· On the formalist account administrative law concerns the written statues that govern public decision makers
o They must not act outside their authority
o Judicial review focuses on the limits of the authority given by statute
· On the substantive side
o Authority is bound by the purpose and terms of the unwritten and written legal principles
o Formally valid exercise of discretion can offend the rule of law
A foundational principle but an unwritten one
· Manitoba Language Rights
o By failing to act within the manner and form prescribed by the constitution, the actions of mb officials had transgressed the principle of legality
o Court defined ROL as a highly texture expression.. conveying a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority (55)
§ They characterized ROL as the principle of legality
§ This principle was characterized in two ways
· It meant that the law is supreme over all
· And it meant that law and order were an indispensable element of civilized life within a political community
· Democracy, parliamentary sov, and ROL inform our understanding of responsible government
New minimalist ROL
· Law is supreme
· Requires the creation of actual positive lawz
· Relationship between the state and the individual to be regulated by law
· Linked to principles of judicial independence
Unruliness in the Lower Court?
· SCC has signalled an unwillingness to engage in any gap filling through the use of unwritten principles
o However lower courts seem to have been more willing to go there
· Lalond case
o Administrative decision to shut down a franco hospital in ON was quashed because of the unwritten principle of respect for and protection of minorities
· Kahdr case
o Justice sharpe used rule of law to justify denying a ministers decision to hand Khadr over to the US, the very same country who had subjected him to lawlessness when he was detained in Pakistan
Administering the rule of law
· An expansion of the state and the many administrative decision makers and tribunals required courts to rethink their relationship to administrative decision makers
Deference
· The role of the courts in a complex administrative state can be understood in two ways
o Policing the exercise of delegated powers to ensure they are doing what they are allowed to in the statute
o Are themselves under ROL constratins to respect legislative and executive brances
· Greater deference was given to tribunals which had more democratic pedigree
o Eg: municipal councils
· Now deference could be thought of more as “respectful deference” with an institutional dialogue
National Corn growers
· The Canadian import tribunal made a decision to put a duty on US corn based on an investigation
o According to Wilson
§ Administrative agencies bear primary responsibility for their legislative mandate
§ Admin agencies possess expertise, experience and knowledge that the courts don’t have
§ Statutory interpretation can sustain a variety of unique reasonable decisions
· She was concerned that the court was reintroducing the correctness standard in judicial review
o Her comments explicitly rejected the old diceyan model
§ If the court scrutinized every decision of the tribunal it would soon be useless
o Gonthier for the majority went with a more probing analysis of the tribunals decision
§ Although he saw what he was doing as respectful of the tribunals decision, the effect was to move the standard of reasonableness towards correctness
· This case demonstrates how different models of adjudication explain how judges understand their institutional role
o Wilson reflects fullers approach
§ More respectful
o Gonthier reflects Raz approach
§ ROL supports correcting harms created by the law itself
Privative clauses, the standard of Review, and the Adequacy of Reasons
· Privative clauses
o National corn growers was an example of a privative clause that caused problems for courts attempting to review decisions
§ Privative clauses seek to protect admin decisions both from internal dispute and external judicial review
§ Decisions are meant to be final
British Columbia v. Imperial Tabacco
Facts: BC government enacted a law that authorizes an action by the government against a manufacturer of tobacco to try and get health care related costs incurred from tobacco smokers.
Issue: is the law unconstitutional because it is against the rule of law?
Reasoning: The act does not violate the rule of law or charter. There is not special requirement that legislation must be devoid of special advantages for the government enacting it. Furthermore, other than in criminal matters there is no probation concerning retroactive or restrospective legislation. Companies sued under the act will still receive a fair trial. Just because they think the act is unfair, and unprecedented does not mean they will not receive a fair trial.
BC v. Christie
Facts: BC imposed a seven percent tax on legal services. C was a lawyer who worked primarily with low income people. He did not make a lot of money, and despite the fact that many of his legal bills went unpaid, he was still forced to pay the 7 percent tax on unpaid legal services. This meant that the tax ultimately prevent low income people from accessing the justice system. C claims that effective access to the courts necessitates access to legal services.
Issue: does the tax breach a constitutional right to legal services?
Reasoning: C seeks the consitutionalization of a particular type of right. Access to the justice system aided by a lawyer.
The rule of law embraces at least three principles. First that the law is supreme over government as well as private individuals, second is the creation and maintenance of an actual order of positive rights which preserves and embodies the more general principle of normative order, and the third principles that the relationship between the state and the individual be regulated by law (para 20). General access to legal services is not a generally recognized aspect of rule of law. However it is possible that it could be added as a fundamental aspect of rule of law.