Judicial Review summary

Class 2: A short tour of what's at stake: your money and your life.

Discussion of the role of the judiciary in ensuring that administrative actors comply with the law.

Roncarelli v. Duplessis, SCC, 1959 (Quebec)

Facts /
  • Premier Duplessis ordered the Quebec Liquor Commission to revoke the liquor licence held by Roncarelli, because he had posted bail bonds for Jehovah’s Witnesses who had been charged with distributing their literature in violation of municipal bylaws.
  • The liquor licensing statute simply stated that licences could be revoked in the discretion of the commission and did not specify the circumstances in which, or the purposes for which, the power was exercisable

Issues /
  • Was the Liquor Commission entitled to use its “discretion” to deny Roncarelli a license?

Holding /
  • No. Appeal allowed.

Reasoning / Rand (Majority)
  • In a time of increasing public regulation, such an administration cannot act without complete impartiality and integrity, and grounds for refusal must not be incompatible with the purpose of the regulation
  • No such thing as absolute and untrammelled discretion: no legislative Act can, without express language, be taken to convey unlimited arbitrary power for capricious or irrelevant purposes
  • E.g. fraud and corruption are assumed to be exceptions discretion implies good faith
  • There is always a perspective within which a statute is intended to operate and any clear departure from its lines or objects is just as objectionable as fraud or corruption
  • To deny or revoke a permit because a citizen exercises an unchallengeable right, totally irrelevant to the sale of liquor, is beyond the scope of discretion conferred
  • The ban on Roncarelli’s liquor license was “forever”
  • A gross abuse of legal power designed to punish him for an act totally unrelated to the statute and destroy his economic life
  • Good faith means carrying out the statute according to its intent and for its purpose
  • A decision to deny or cancel this privilege lies within the “discretion” of the Commission – but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration – I.E. LOOK TO PURPOSE
  • If citizens had to content with the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, it would signal the beginning of “disintegration of the rule of law as a fundamental postulate of our constitutional structure”
  • Discretion entails 1) good faith, 2) non-arbitrariness and 3) no fraud or corruption in discharging public duty.
  • Therefore, the respondent’s action is a breach of public statutory duty, an abuse of legal power.
  • The discretion of the commissioner is not absolute, it must remain within the bounds of the purpose of the statute.
  • Duplessis, in instructing the commissioner, acted outside of his legal powers.
Cartright (Dissent)
  • The statute empowering the commission gets its power grants unfettered discretion with regard to granting permits. The commission’s function is administrative, not judicial or quasi-judicial
  • Under the statute, no one has a pre-existing right to obtain a permit and it may be cancelled at any time. Without a right to have the permit, he has no right of action
  • There are no standards or conditions in the statute about when permits can be revoked, and thus the Legislature intended the commission “to be a law unto itself”
  • The wisdom of conferring such unfettered power to a commissioner is not for the court to consider, but the legislature

National Bank of Canada v. Retail Clerks’ International Union et al, SCC, 1984 (from Federal Court)

Facts /
  • National Bank closed a branch at which 15 tellers had unionized
  • The Canadian Labour Board found that the Bank had committed an unfair labour practice
  • The Canadian Labour Board imposed various remedies, including:
  • No. 6 – Bank must create a trust fund to promote the objectives of the Canada Labour Code among all its employees
  • No. 5 – Bank must send a letter to all Bank employees on Bank stationary, written by the president, informing them of the decision and the creation of the fund

Issues / Did the Board exceed its jurisdiction by imposing the two noted remedies?
Holding / Yes. Appeal allowed.
Reasoning / Chouinard (For the Court)
  • Court agrees that the actions of the Bank constituted offences
  • The Board is authorized to order an employer to do or refrain from doing anything “in order to remedy or counteract any consequence of such failure to comply that is adverse to the fulfilment of the Code’s objectives” (s. 189)
  • However, there must be a relation between the unfair practice, its consequences and the remedy – NOT PRESENT FOR NO. 6
  • Trust fund promotes the unionization of OTHER employees – doesn’t remedy the consequences of closing the branch in question
  • The fact that a large number of the banks’ employees are not unionized is not a consequence of the closure of that branch
  • Since No. 5 repeats the conclusions of No. 6, in a letter, it should also be set aside
Beetz (Additional Reasons)
  • No. 5 and No. 6 are both punitive in nature, and the Board has no power to impose punitive measures
  • Letter never says that both it and the creation of the fund were imposed by the board – signor is not allowed to say so
  • This has the effect of forcing the signor to agree with the provisions of the Code – to write a letter which may be misleading or untrue
  • This is totalitarian – anathema to freedom of thought, belief, and expression

Notes on this: the labour board was enabled to do anything required to counteract the effects of the businesses action. Was there any other way to counteract the chilling effect of the bank's action, here?

Smith v. Canada (Attorney General) 2009 FC 228 (headnote)

Baker

Dunsmuir

Class 3: The nuts and bolts and (constitutional?) basis of judicial review

Examination of the constitutional and statutory basis of judicial review.

Crevier v. Quebec (Attorney General),SCC, 1981

Facts /
  • The Professional Code (Quebec) sets up a discipline committee for each of the 38 professions that falls under it; these committees (composed of one lawyer and two members of the profession) have jurisdiction over every complainant of an offence under the Code “to the exclusion of any court”
  • The Code also created a Professions Tribunal (composed of Provincial Court Judges) to which decisions of the committees could be appealed
  • ss. 194 and 195 of the Code state explicitly that the CCP articles allowing the oversight of the Superior Court over decisions of the Tribunal (including those pertaining to jurisdiction and law) “shall not be exercised”
  • A majority of the Court of Appeal ruled that ss. 194 and 195 could be read down to preserve the Superior Court’s authority with respect to jurisdictional questions, and thus save the Professions Tribunal from being invalidated by s. 96

Issues / Do powers of the Tribunal violate s. 96 of the Constitution Act, 1867?
Holding / Yes, appeal allowed
Reasoning /
  • Tomko: when determining whether a tribunal is infringing on the preserve of s. 96 courts, must look at the “context” in which the power is exercised
  • It’s possible for administrative tribunals to exercise powers that were once exercised by s. 96 courts
  • The scheme is only invalid when the adjudicative function is a sole or central function of the tribunal
  • In the case, the Tribunal has no function other than that of general tribunal of appeal; therefore, its final appellate jurisdiction is not part of an institutional arrangement set up as a regulatory scheme by the provincial government [does the court actually make this point?]
  • Privative clauses to limit judicial review of decisions are OK.
  • However, a provincially-constituted statutory tribunal [or a federal one?] cannot be immunized from review of decisions on questions of jurisdiction (s. 96)
  • Questions of jurisdiction are different from simple errors of law
  • To give a provincially-constituted statutory tribunal a jurisdiction in appeal on questions of law without limitation, and to reinforce this appellate authority by excluding any supervisory recourse to the Quebec Superior Court, is to create a s. 96 court

Comment / Is Crevier fundamentally about
  • Preventing the provinces from trenching on the feds’ power to appoint judges to the superior courts by the creation of tribunals that have an essential characteristic of superior courts?
  • OR about protecting the individual’s right to seek from an independent judiciary, constituted pursuant to section 96?

Gagliano v. Canada, 2006 FC 720(on the 317 motion)

Federal Courts Act(extracts s.2, s.18, 18.1 and 317)

Chapter 1, An Introduction to Administrative Law

Class 4: The rule of law

Examination of theories of the rule of law in Canada and the role they play in jurisprudence related to judicial review.

Roncarelli v. Duplessis

Dicey – idea that all persons are equally subject to the law. Formal equality.. In our private actions, we are all equal. One of the leading lessons of Roncarelli.

Court expressing unwritten rule of law principle:

Manitoba Language Rights case, 1985 (p 54 textbook) and QC Seccession reference (1998)

Then scaled back Rule of Law...

Imperial Tobacco, Charkaoui, Christie

British Columbia v. Imperial Tobacco Canada Ltd. (SCC, 2005)

Facts /
  • The Tobacco Damages and Health Care Costs Recovery Act (the “Act”) authorized the province to sue tobacco companies for the recovery of health care costs from the past 50 years
  • The government argued that the companies had breached a duty of care to consumers
  • The Act reversed the burden of proof, and changed several other rules of civil procedure to favour the government
  • Tobacco companies challenged the validity of the act on three bases, one of which was the rule of law (right to a fair trial)

Issues / Does the act violate the rule of law?
Holding / No
Reasoning / Major (for the Court):
  • The rule in law is a fundamental postulate of our constitutional structure
  • Three aspects to rule of law:
  • Legislation applies to everyone, including government officials
  • Legislation must exist – an actual order of positive law
  • State officials’ actions must be legally founded
  • Rule of law cannot be used to invalidate legislation based on its content – none of these principles speaks directly to the terms of the legislation, only to requirements of manner and form (the procedures by which legislation is to be enacted, amended and repealed)
  • Its normative power to constrain government action is usually restricted to the executive and judicial branches
  • However, still considerable debate about what additional principles might be embraced by the rule of law and the extent to which it can mandate the invalidation of legislation based on its content
  • Allen: laws that fail to respect equality and human dignity are contrary to the rule of law
  • Tremblay: rule of law includes the liberal principle, the democratic principle, the constitutional principle, and the federal principle
  • Beatty: the rule of law is about proportionality
  • Raz: the rule of law is just an ideal of constitutional legality involving open, stable, clear and general rules, even-handed enforcement of those rules, independence of the judiciary, and judicial review
  • “Advocates tend to read into the principle of the rule of law anything which supports their particular view of what the rule of law should be” (Singh)
  • Tobacco companies argue that the rule of law requires that legislation be prospective, general in character, not confer special privileges on the government except when necessary for effective governance, and ensure a fair civil trial
  • None of these requirements enjoy constitutional protection in Canada
  • Moreover, recognizing the constitutional force of these points would seriously undermine the legitimacy of judicial review, since the requirements they propose are simply broader versions of Charter rights (fair trial all the time, not only for criminal offences as in 11(d))  risk rendering explicit Charter rights redundant
  • Also, court has recognized principles other than the rule of law (democracy, constitutionalism) that militate strongly for upholding legislation that conforms to the express terms of the Constitution
  • Written constitution is paramount – citizens should look to the text of the constitution and the ballot box for protection, not amorphous principles underlying the constitution
  • Narrow reading of the rule of law
  • Does not require that legislation be prospective (except for criminal law)  there is a presumption against retroactivity, but if retroactivity is clearly expressed, then the courts must uphold it (retroactive laws are passed all the time)
  • Does not require that legislation be general and devoid of special advantages for the government several examples of valid non-general legislation (e.g. Authorson v. Canada)
  • Does not ensure a “fair” civil trial:
  • No constitutional right to have one’s trial governed by ordinary rules of civil procedure
  • In any case, “new” rules that modify ordinary civil procedure are not necessarily unfair
  • Tobacco companies still get a fair trial as that term is generally understood: impartial court, public hearing, they can contest claims of plaintiff, etc.

The Court found that this unwritten principle was not sufficient to actually knock down a democratically enacted legislation. How can we square the rich broad interpretation in the QC reference, with this narrow and formal reading of this. Are these consistent?

There is tension between these two things. If a law violates the Charter then s. 1 and s. 33 can be invoked. But this can not be done for a law struck down for unwritten principles.

Note: this case had bad facts. Also, it was in the mid-2000s, a time when the SCC was sensitive to criticism re judicial activism If judges can outlaw legislation based on unwritten principles, this was a LOT of power

  • Christie
  • Christie argues that a 7% tax on legal services flies in the face of access to justice for the indigent
  • Court finds that the RoL doesn’t give the court the right to strike down a tax provision
  • Charkaui
  • Charkaui was named to a security certificate
  • Security certificate: a minister simply signs the certificate and the individual is immediately detained with charge, without the right to know the case against him or have anybody advocate on his behalf, potentially indefinitely
  • Supreme Court shot down this scheme: rules that there must be a special advocate on behalf of the client
  • This is hardly unproblematic, however, since there are ongoing restrictions on the powers of the advocate – e.g. advocate can’t communicate with client during the procedure
  • However, SCC says that this can all be dealt with under the rubric of the Charter – don’t need to drag in the notion of the rule of law to settle it – that’s why it supports a narrow view of the RoL

New Brunswick v. G. (J.), [1999] 3 SCR 46 – no legal aid for a lawyer for a custody dispute.

National Corngrowers v. Canada (Import Tribunal)(SCC, 1990)

Jurisdiction / Federal Court of Canada
Facts /
  • The Canadian Import Tribunal conducted an inquiry into the importation of corn from the US into Canada, as authorized under s. 42 of the Special Import Measures Act (SIMA)
  • Inquiry determined that the continuing importation of corn had caused or would cause injury to Canadian corn growers, and provided support for the Deputy Minister’s decision to impose a provisional duty on American corn imports
  • Decision seemed to be final, because:
  • Based on a finding of fact informed by their expertise
  • SIMA contained a privitive clause (s. 76(1)) stating that every finding of the tribunal was final
  • However, Federal Court Act allows for judicial review if a tribunal has based its decision “on an erroneous finding of fact made in a perverse or capricious manner” (SDQ)

Issues / What is the appropriate standard of review?
How deep should a court probe in a patent unreasonableness review?
Holding /
  1. Patent unreasonableness
  2. Gonthier: full analysis (look at the result); Wilson: look for immediate defects only

Reasoning / Note that both judgments agreed that review should be on a patent unreasonableness standard but disagreed about what review on this standard entailed (i.e. the interpretation of C.U.P.E.): how deeply can you scrutinize the reasons?
Gonthier (Majority)
  • Asks, “did the Tribunal reach a decision that wasn’t patently unreasonable?”
  • How can you assess whether an interpretation was reasonable without looking at the reasons underlying it (and the conclusion itself?)
  • Accords more with the “deference as respect” approach
  • In the presence of a privative clause, courts will only interfere with the findings of a specialized tribunal where it is found that the decision of that tribunal cannot be sustained on any reasonable interpretation of the facts or law (C.U.P.E.)
  • Finds all considerations and conclusions made by the Tribunal to be not unreasonable – disagrees that there was “no evidence” on which to base a finding that material injury had been caused
  • Decision should therefore be left undisturbed
  • Still sees himself as being respectful and deferential – moving away from traditional Diceyan model
  • However, moves the standard of review away from patent unreasonableness and closer to correctness
Wilson (Concurring)
  • “Quick sniff test” – should ONLY look at whether the interpretation of the provision is “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation”
  • If it isn’t, that should be the end of judicial review
  • SHOULDN’T look at international law
  • SHOULDN’T look at whether the tribunal can refer to other legislation (such as GATT) unless the legislature places limits on the legislation that may be referred to
  • SHOULDN’T look at how well the evidence supports the Tribunal’s finding in the face of a privitive clause
  • SHOULDN’T look at the ultimate conclusion made
  • Holds these views because she supports deference: doesn’t want courts to undertake deep, thorough evaluations of the decision because the deeper they go, the more likely they will be to find a point of contention
  • During the 20th C initial suspicion about administrative law gave way, and it came to be recognized that:
  • Officials be allowed a degree of discretion
  • Decisions of administrative tribunals should not be subject to the same extensive form of review as the decisions of courts
  • Activist judges who are too quick to quash administrative decisions fail to recognize:
  • That these decisions are crafted by those with specialized knowledge of the subject matter (courts may be much less well equipped in these domains)
  • That there is value in limiting the extent to which their decisions may be frustrated by expansive judicial review
  • Statutory provisions often do not yield a single uniquely correct interpretation – invite discretion
  • Judges came to realize for themselves that their approach of non-specialist linguistic and textual analysis was not always equal to the task – see esp. Professor Arthurs, p. 16
  • Here the interpretation cannot be said to be patently unreasonable. The terms “subsidy” and “material injury” are defined in very broad terms and deference should be accorded to the expert tribunal.

Class 6: Sources of the Duty to be fair