Administrative Tribunals Course Notes

ADR 502
Administrative Tribunals- September 26, 2013

Course Work: Presentation 10-15mins

Extent of Procedural Fairness for Tribunals
-Tribunals deal in both rights and interests
-Parties pursue rights
-Interest relate to third parties effected directly by issue being heard, therefore may be given standing/intervener status
-Supreme Court of Canada: Nicholson case expended interests
(http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/5543/index.do)
-Tribunals there to protect individual parties rights and third party interest
-Content of procedural fairness can be enabled by the statue (explicit statue; so long as it meets charter Sec.7 requirements) vs. silent statue which then establishes procedural requirements through common law ( reference Baker case)
-Procedural requirements can vary depending on the case/nature of issues being heard; Greater the impact on interest and rights the higher the required procedural requirements. Some tribunals have investigation stages and based on findings may or may not recommend proceeding to formal adjudicative hearing. Procedural fairness provisions apply just as much to the investigation

Four Content Considerations: Statue provisions, nature of decisions (personal vs. economic) and stage of proceedings (investigative vs. adjudicative), part vs. non-party
-Personal interests require high procedural fairness considerations in comparison to economic interests
-Parties are awarded higher protections then non-parties

Non-Party Intervener Status
-must be applied for and granted; explicit statue might address intervener standing directly and outline extent of participation. If statue is silent then they may infer authorization or decline authorization
E.G Taxicab act—Taxicab tribunal decides applications for licenses (expand, contact or dissolve); Company wanted to expand fleet. Competitors wanted standing. Statue was silent and tribunal decided to infer authorization to allow participation but with limited about of disclosure (competitors wanted companies business plan which was declined by tribunal.) – Example of lessor provision of procedural fairness to non-parties granted intervener status

Two Types of Decisions
1. Jurisdictional Decisions
-E.G Taxicab tribunal decision
2. Discretional Decisions
-E.G Baker; needed to decide if feel within rights to dispute of humanitarian and compassionate grounds
-Both types of decisions require direct authorization from statues

Two Types of Review Mechanisms
1. Judicial Review
-Corrects for illegal decision made through jurisdictional error (questions of law or in the way discretionary decisions were made)
-Divisional Court made up of Superior court of Canada judges. Only the Superior court can perform judicial review as the only court that has jurisdiction over lower inferior courts and tribunals
-Needs to determine which standard of review to apply: Correctness vs. reasonableness
-Correctness always applied to questions of law whereas reasonableness applied to discretionary decisions
-Reasonableness is laxer standard compared to correctness standard
-If decisions is found to be within a reasonable range the decision will be protected if outside a given range will be stuck down.
EG. Baker: immigration officer exercised discretion through uses of decision but made with basis therefore outside his jurisdiction. Reasonableness standard was applied upon judicial review. Amount of basis was found to be outside the range of reasonableness and as such was stuck down as unreasonable.
2. Appeal
-Review mechanisms for when decisions are legal but wrong; corrects for rest of discretionary decisions

Primitive Clauses
-Clauses are installed in statue by legislature (very bold move)
-Prevent courts from reviewing tribunal decisions Two Types
1. Finality Clauses: decisions are final and not subject to review
2. Un-reviewability Clauses: cannot be review by anyone

Legislative Arguments for Primitive Clauses
-Expertise: Arguments tribunals are made up of specialists vs. generalist court judges therefore should not be subject to review by those with less subject matter knowledge
-Efficiency/Volume: Counterproductive to have decisions subject to review

Struggle for Supremacy between Courts and Tribunals: Reasoning and Court Reaction
-Administrative state telling courts to stay out of their business by installing primitive clauses
-Courts argue cannot be shut out as function to protect constitutional rights through rule of law and have ignored primitive clauses per Sec.96 of constitution insist on duty to supervise lower courts and no ordinary law can take that duty away (applies to decisions made outside of jurisdiction)
-Decision within jurisdiction were also previously struck down by courts through the rationale of faulty reasoning
E.G SCC Cupe (1979 SCR 227)
New Brunswick LCBO strike. LCBO wanted to keep open so put management on the tills but under the legislation cannot substitute for striking workers. CUPE sued employer through labor relations tribunal.
-Employer argued that statue did not refer to temporary replacement but only permanent. CUPE argued refers to both temp and permanent. Tribunal sided with CUPE. LCBO went to judicial review and on review decided to strike it down based on faulty reasoning. Went to SCC who established that the tribunal had a right to be wrong so long as decision was reasonable.
-Cased established deference principle to executive decision making which is still in place today. This case established the range of reasonableness which applies to discretionary decisions.

Next Week:
-More in-depth discussion of standing and intervener status
-East Side Vancouver Sex Worker Case: Challenge to prostitution law: Organization did not have individual personal state in the outcome; had to apply for intervention status vs. -Eldrige BC health care case: Deaf and mute man argued charter breach of Sec.15 equality rights due to substandard access to health care as there was no sign interpreter on call. Difference being that he had a personal stake in issue
-Charter only applied to governmental actor; but who is a governmental actor can sometimes be unclear.
-Test for governmental actor is an autonomy based test; If found to be autonomous not considered a governmental actor.