Judicial Review of Administrative Action

Judicial Review of Administrative ActionWinter 2006

Judicial Review of Administrative Action

Professor Evan Fox-Decent

Winter 2006

Part I: Introduction

1.Introduction to Judicial Review of Administrative Action

2.Introduction to the Rule of Law

Abuse of Discretion as a Ground for Judicial Review (CB 951-954)

Roncarelli v. Duplessis [1959] SCR 121 (Que.), p. 952

British Columbia v. Imperial Tobacco Canada Ltd. [2005] SCC 49

3.The Administrative State and the Rule of Law

Areas of activity that are the subject of administrative schemes:

Actors of administrative law

Judicial Review

Grounds for Judicial Review

The Rule of Law and the Administrative State

4.The Constitutional Basis of Judicial Review

Courts and Tribunals

Re Residential Tenancies Act, [1981] 1 SCC 714

Crevier v. Quebec (Attorney General), 1981 SCC

5.The Role of Judicial Review

Baker v Minister of Citizenship & Immigration (1999) SCC

Part II: Administrative Procedures and the Duty of Fairness

6.Introduction and Historical Overview

Cooper v. Board of Works for Wadsworth District (1863) (England)

7.Emergence of the Duty of Fairness

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police (1979) SCC

Knight v. Indian Head School Division No. 19, [1990] 1 SCR 653 (Sask.)

8.Limitation on the Scope of the Duty: legislative and policy decisions

Cabinet and Cabinet Appeals

Canada (Attorney General) v. Inuit Tapirisat of Canada [1980] 2 SCR 735 (Can.)

Bylaws and Rulemaking

Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980] 2 SCR 1011 (Ont.)

Legislative Decisions

Authorson v. Canada [2003] SCC 39

Wells v. Newfoundland [2004] SCC 53

East York (Borough) v. Ontario (Attorney General), [1997] O.J. No. 3064

9.Legitimate Expectations

Liverpool Taxi Fleet Operators’ Association, [1972]2 QB 299 (CA,) UK

Kahn, UK, House of Lords

Old Saint Boniface Residents Assn. Inc. vs. Winnipeg (City), [1990] 3 SCR 1170 (Man.)

Reference re Canada Assistance Plan [1991] 2 SCR 525 (BC)

Mount Sinai Hospital v. Québec [2001] 2 SCR 281 (Qué)

Baker v Canada [1999] 2 SCR 817 – Legitimate expectations

10.Interests Protected by the Duty of Fairness

Re Webb and Ontario Housing Corporation, [1978] Ont. CA

Hutfield v. Board of Fort Saskatchewan General Hospital, District No.98

Mullan and Ceddia, “Globalization and Domestic Law: The Impact on Public Law of Privatization, Outsourcing and Downsizing – A Canadian Perspective

11.Constitutional Dimensions: Section 2(e) of the Bill of Rights & Section 7 of the Charter

National Anti-Poverty Organization v. Attorney General of Canada, [1990] FCA

Singh v. Minister of Citizenship and Immigration, [1985] SCC

12.The Content of Procedural Fairness

12.1Introduction and Framework

Mullan (pp. 171-6)

Baker v Minister of Citizenship & Immigration (1999) SCC

Knight v. Indian Head School Division No. 19, [1990] 1 SCR 653 (Sask.)

Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3

Quebec Charter of Human Rights and Freedoms RSQ 1977, c. C-12

12.2Oral Hearings

Khan v. University of Ottawa (1997) (Ont CA)

12.3Right to Counsel

Re Men’s Clothing Manufacturer’s Association (1979) (Arbitration  Ont Div Ct)

NB (Minister of Health and Community Services) v. G. [1999] 3 SCR 46

12.4Disclosure

Kane v. Board of Governors of UBC [1980] 1 SCR 1105

Haghighi v. Canada (Minister of Citizenship and Immigration) [2000] FCA

Pritchard v. Ontario (Human Rights Commission) [2004] SCC

12.4Duty to Give Reasons

Baker v Minister of Citizenship & Immigration (1999) SCC

Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3

VIA Rail Canada Inc. v. National Transportation Agency [2001] 2 FC 25 (FCA)

Liang v. Canada (Minister of Citizenship and Immigration) [1999] (FCTD)

Gray v. Ontario (Disability Support Program) (2001) (Ont CA)

12.5Bias and Lack of Independence

Energy Probe v. Canada (Atomic Energy Control Board) (1984) (FCTD  FCA)

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcools) [1996] 3 SCR 919 – IMPARTIALITY

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcools) [1996] 3 SCR 919 – INDEPENDENCE

Newfoundland Telephone Co. v. Newfoundland (Bd of Comm of Pub Util) [1992] 1 SCR 623

Canadian Pacific Ltd. v. Matsqui Indian Band [1995] 1 SCR 3

Bell v. Canadian Telephone Employees Association [2003] 1 SCR 884

12.6Unreasonable Delay (not covered this year)

Blencoe v. BC (HR Commission), 2000, SCC from BCCA

13.Reflection on Procedural Fairness

Part III: Substantive Review and Jurisdiction

14.Introduction

The Meaning of Jurisdiction (Mullan)

Law Society of New Brunswick v. Ryan [2003] SCC

Dr. Q v College of Physicians and Surgeons of British Columbia [2003] SCC

Toronto (City) v C.U.P.E., Local 79, [2003] SCC

15.Pragmatic & Functional Approach

15.1Patent Unreasonableness

C.U.P.E., Local 963 v. New Brunswick Liquor Corp. [1979] SCC

National Corn Growers Assn. v. Canada (Import Tribunal), [1990] SCC

Problems Distinguishing between Patent Unreasonableness & Reasonableness

15.2Correctness

Canada v. Mossop, [1993] SCC

Trinity Western University v. British Columbia College of Teachers, [2001] SCC

Pushpanathan v Minister of Citizenship and Immigration, [1998] SCC

Barrie Public Utilities v Canadian Cable Television Assn, [2003] SCC

15.3Reasonableness simpliciter

Canada (Director of Investigation and Research) v. Southam Inc [1997] 1 SCR 748

Chamberlain v. Surrey School District No. 36, [2002] 4 SCR 710

Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 SCR 609

16.Discretion

16.1Ultra vires and review for unreasonableness: Abuse of Discretion as a Ground of Judicial Review

Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3

Shell Canada Products Ltd v. Vancouver (City) [1994] 1 SCR 231 (BC)

Failure to Consider Relevant Factors

Baker v. Minister of Citizenship and Immigration [1999] – Review for unreasonableness

Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] FCA

16.2Discretion and the Constitution: the Charter and Underlying Principles of the Constitution

Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038

Lalonde v. Ontario (Commission de restructuration des services de santé) (2001) Ont.CA

17.Application of International Human Rights Law

Baker v Minister of Citizenship & Immigration (1999) SCC – International Law

Ahani v Minister of Citizenship & Immigration (2002) Ont CA

Dyzenhaus, Hunt, Taggart, The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation

18.Discretion, Rulemaking and “Soft Law”

19.Agency Jurisdiction to Determine Constitutional Matters

Cooper v Canada (Human Rights Commision) (1996) Ont CA

Part I: Introduction

1.Introduction to Judicial Review of Administrative Action

Judicial Review: review of administrative decisions or determinations made by someone who has the power and authority to make a certain set of decisions of determinations, but this person is not of the judiciary (typically part of the administration, which refers to all agencies, tribunals, commissions, ministers who have been delegated powers from statutes as acts of Parliaments or legislatures to deliver public goods or administer public programs). This includes immigration officers, competition tribunals, regulatory agencies (e.g. CRTC), labour boards, municipal counsels, …

Judicial Review vs. Appeal: Judicial review is concerned with legal errors and can be available when there is no leave for appeal. It is a review of the procedure and substance of the tribunal’s decision seeking the relief of a prerogative remedy.

The lawfulness of a tribunal’s decision may be impugned by a challenge to procedure (natural justice) OR that the decision does not accord with the law (the empowering statute).

A decision of an administrative board may be reviewed on either two grounds:

Process (Procedural fairness): that body of common law that requires a decision maker or an administrative tribunal to allow a person subject to their decision-making ability to reply to the case before them.
Based on natural justice
Has to do with process, not substance
The decision-making body is given a certain amount of latitude, but idea that there is an inherent right of the reviewing body to review the procedure that was used.
Courts will feel quite comfortable reviewing process issues (have the expertise, they have an as good or even better understanding of knowing what natural justice is)
Substance: Review of the particular outcome that the decision-maker reached, and the reasons that the decision-maker gives for a particular determination.
Whether the decision complies with the constitution
All the powers that are exercised are powers that are granted by statutes. As such, all of the exercises of power that emanate from the statutory authority have to be valid from a constitutional perspective that is, they have to be consistent with the Charter (Bill of Rights) and the BNA.
Whether the decision-maker has acted within the bounds of the bounds that are contemplated by the Statute. Rand J. in Roncarelli : there is always a perspective with which a Statute is contemplated.
There is no clear way to distinguish review of a particular decision on the basis of whether it is in excess of a jurisdiction, or whether it is the substance the court disagrees with.
Courts are typically working with a model inherited by Dicey – in public law, the Parliament has a whole-sale monopoly of production of law, judges have a whole-sale monopoly of the application or interpretation of law of particular facts. Up to the 19th c., this model has more or less worked, at least in England, because there was not much administrative law around. In the early 19th c., the administrative state has start taking hold (distrust in the market for safe water, equitable operation of municipalities and other things in which the administrative state has started to develop).
Over the course of the past 150 years, there has been undergoing tension between boards set up with authorities to decide on the issues before them (labour, immigration, compensation, etc.).

All powers that are granted by the legislatures are by nature limiting powers.
If a public official is given discretionary power, historically the approach has been, within the bounds of this discretion, the administrator is given the power to do whatever he wants.
E.g. Roncarelli: in a state of civil unrest with Jehovah’s witnesses, the retaliation against a person who was supporting this movement, Premier Duplessis ordered that the liquor board cancel Roncarelli’s permit to sell alcohol. The cancellation of the liquor license drove Roncarelli out of business. On the face of the Statute, the Qc liquor authority had the authority to cancel or revoke a liquor license at its own discretion. That aspect of the Statute is underlined by Cartwright J. (the most interesting dissent). But SCC ruled against it. Rand J. (majority) has to overcome the Statute and history of common law / public law judicial review which says that when a discretionary grant of power is made to an administrative body, the latter can act within the bounds of this discretion.
Rand J: What courts are developing is a common law history and background of concepts and ideas. Procedural fairness is a right of quasi-constitutional nature; so it does not matter whether a certain a specific procedure has been followed. Process / fairness is intrinsic to legality itself, so it is intrinsic when reviewing public law.
The only source that we should be recognized in public law is the legislature. Judges are not supposed to make law, but interpret it, and when judges impose obligations on decision-makers, you will find that in some cases it is unwarranted judicial activism. Judges acting as legislators in an unjustified way.

2.Introduction to the Rule of Law

Abuse of Discretion as a Ground for Judicial Review (CB 951-954)

At COL, number of discrete grounds of judicial review for abuse of discretion:

The decision maker may have acted in bad faith, wrongfully delegated its powers, fettered its exercise of discretion by laying down a general rule and not responding to individual situations, or acted under the dictation of another. – RARE
The agency to which it has been given has exercised it in order to achieve some purpose not contemplated by its grant. – MORE COMMON
In exercising discretion, the agency has taken into consideration some factor that is irrelevant to achieving the ends for which the power was granted or, conversely, that the agency neglected to take into consideration some factor that was relevant.

Issues of relevancy and purpose normally boil down to questions of statutory interpretation.

There is in interpretation of statutes plenty of scope for differences in discretion.

Points of reference:

Statutory language in which the discretion is granted – objective or subjective terms, specific or more general purpose.
Nature of the interest affected by discretionary power
Character of the decision
Character of the decision maker

The agency to which the legislature has granted discretion may decide how or whether to exercise it. However, discretionary powers are presumptively limited in scope and the agency’s discretion does not extend to defining the limits of its own powers. (Roncarelli)

Roncarelli v. Duplessis [1959] SCR 121 (Que.), p. 952

Facts:
An order by Premier Duplessis to the liquor licensing commission to revoke the restaurant 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. Duplessis publicly warned him to stop, he didn’t, and then, via the commissioner of the Qc Liquor Commission, had his license revoked. The liquor licensing statute simply state 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. The order added that no future license would ever be issued to him.
Issue:
Was the Liquor Commission entitled to use its “discretion” to deny Roncarelli a license? Did the Liquor Licence Act give Duplessis authority to revoke Roncarrli’s license? Was it within Duplessis’ rights to intervene?
Held: No. Appeal allowed (found for P).
Ratio:Rand J. (Cartwright J dissenting)

In a time of increasing public reg, such administration cannot act without impartiality and integrity, and grounds for refusal must not be incompatible with the purpose of the reg.
Nothing about the revocation was pertinent to the liquor license, the operation of a restaurant. R was denied a permit b/c he was exercising a civil right to post bail. It was meant to stop JW activities and punish R for the part he played, as well as warn others that they too would be stripped of provincial “privileges” if they participated in objectionable campaigns.
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.
The rule of law, a fund postulate of the constitution, must be upheld in the face of expanding gvt regulation and the potential for exec abuses that it facilitates.

Look at the Statute. Js, in their role of legal interpreters, will first look at the words of the Statute to find whether or not the administrators exceeded their jurisdiction. In the Statute, the Commission is given wide-ranging powers for liquor licences in Qc. Wrt to cancellation of licences, the Statute simply says that the Commission can revoke the Statute at any time at its discretion. There is no restriction on the terms of revocation nor on the reasons of revocation.

Cartwright J.:

There is no basis in law to say that any restriction apply to the LC’s authority to cancel Roncarelli’s license.

We have to distinguish between courts of law and administrative tribunals. Courts of law / jurisdiction weigh the facts on the basis of pre-established standards of reference and administer justice on the basis of pre-existing rights and duties. Administrative tribunals exercise their discretion and based their decisions and orders on the basis of policy and expediency. They do not look to the rights and obligations that the parties which come before them might have; typically, it is the case that the parties do not have pre-existing rights. A judicial tribunal looks for some law to guide it, while an administrative tribunal is a law unto itself. No one in Qc in the 1940s who apply for a license or have their license renewed have a pre-existing right to apply for a license or to get their license renewed. Cartwright J emphasizes that these licenses can be revoked at any time.

Distinction between rights and privileges.Courts deal with rights; administrative tribunals deal with privileges. Because there is no pre-existing right, individuals such as Roncarelli have no standing, no capacity to make claims at law about what hurt their interest.

Courts have judicial capacity; administrative tribunals have administrative capacity.

Cartwright J recognizes that in some cases, administrative tribunals, when they act in a quasi-judicial capacity, they have to abide by principles of natural justice. But this is not the case here. It might be a good thing for the LC to provide reasons, however, there is no obligation to for the LC to do so.

Rand J.:Principle of Dictation:The discretion cannot be exercised under dictation. Administrative decision-makers cannot act under the influence of someone else who does not have the authority to make the decisions that they themselves alone have the authority to make. In this case, only the LC had the authority to make such decision.

Often Statutes do not spell out all the powers which the administrative tribunal cannot exercise; restraints on the authority of the administrative agency.

You have to have in mind the purpose for which the Statute is intended to operate. Rand J (at 140): “A decision to deny or cancel such a 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. (…) “Discretion” necessary implies good faith in discharging public duty; 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 and unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred.”

Public interest must also be kept in mind. Rand J (pg 15, CP1): “It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiallity and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute.”

TEST to review discretion: whether discretion has been exercised

taking into account all relevant factors and
not taking into account irrelevant factors
nor improper or personal purposes.

GENERALIZED PRINCIPLE: Where, by a statute restricting the ordinary activities of citizens, a privilege is conferred by an administrative body, the continuance of that enjoyment is to be free from the influence of third persons on that body for the purpose only of injuring the privilege holder.