Chapter 9 Law

-A form of public law
-While sharing many of the characteristics of constitutional, criminal and family law, is conceptually separate
-There is no one statute or code that establishes this branch of law
-There is no overarching legislation that defines the essence of admin law

-Labour relations
-Worker compensation
-Parole
-Employments insurance
-Radio-TV communications

-The legal machinery that makes the constitution of admin law

-(under s. 91 and 92 of BNA Act) A province may not delegate its powers directly to the federal government nor may the federal government delegate its powers directly to the provincial legislature
-The federal government may delegate its powers to; a tribunal, board, commission or agency created by a provincial legislature
-Similarly, provincial government may delegate their powers to a body by federal legislation
Can only delegate power once

1. Not all authority in relation to a given jurisdiction is delegated to the "inferior" tribunal
2. There is no further delegation of decision-making power from the tribunals to another decision-making authority

1)Due to the size of the government not everything can be dealt with by Parliament or a legislature
2)Much of governmental activity is technical in nature, and only broad principles should be contained in legislation
3)Delegating power to an administrator allows greater flexibility in applying broad statutory provisions
4)It may be possible to devise a general role to deal with all cases, which may be more conveniently determined in the discretion of a delegate
5)The need for rapid governmental action may require faster administrative response than can be accommodated by the necessity of legislative amendment
6)Innovation and experimentation in solving social problems may be possible if legislation is required
7)Someone actually has to apply legislation, and that person has to have authority to do so

1. Advisory: the purely administrative tribunal
-ex: Provincial bodies that issue driver's license
2. Operational: the quasi-judicial tribunal
-ex: Labour boards
3. Regulatory: the fully legislative tribunal
-ex: Human Rights Commission
-legally binding
Not equal in standard

-Not the form but its obligations to those subject to its findings and the extent to which its decisions are renewable by a court

-Courts:
+Interpret and apply the law
+Stare decisis (inflexible)
+Formal-specific rules and procedures to be followed
+Make decisions based strictly on law
+No relationship with parties before them either before or after hearing
+Unlikely to have expertise in area to be decided
+Give reasons for their decisions
-Tribunals:
+Formulate (by regulation), interpret and apply the law
+No stare decisis, although attempts to be relatively consistent
+More informal-there may or may not be specific rules and procedures to be followed, but exercise of their powers
+Make many decisions based on public policy
+Likely to have many relationships with parties both before and after adjudication
-Usually have expertise in area to be decided
-Give reasons for their decisions

-Written or unwritten rules and procedures to be followed by any person charged with the duty of adjudicating disputes
-These governmental rules apply to all citizens

1. A duty to act fairly
2. To act in good faith
3. To act impartially and without bias

-Several expressions are associated with these decisions: due process, excess of jurisdiction, doctrine of fairness, and natural justice
-Two key principles of natural justice: audi alteran partem and nemo sibi esse judex vel suis jus dicere debet

-Means: Hear the other side
-Black's Law Dictionary expands: Hear the other side, both sides, no man should be condemned unheard
-Before a Tribunal can make a decision adverse to a person's interest, at a minimum the person should be:
+told of the case to be met
+given an opportunity to respond
+the Tribunals has the duty to "act fairly"

-Means: "no person should act as their own judge, on his own behalf or speak the law for his own (ends)
-Purpose: Is to exclude bias or the appearance of bias from the proceedings of an admin body

-Resemble abuse of discretion
-Allegations that an administrative agency has failed to follow principles of procedural fairness
-Ex: bias and failure to provide due process

-The decision to intervene in the internal affairs of the university was based on the appearance of bias in the university's decision to deny tenure to Dr. Thomas
-Raises two issue:
1. Procedural fairness
2. The circumstances in which an appeal can be launched through Canada's court system to remedy an apparent defect within a decision-making structure

-The issue was a student's ability to appeal their final grade -Ms. Khan claimed to have submitted 4 booklets, while the university stated she submitted 3 during her Evidence exam
-The majority of the Ontario Court of Appeal stated that the refusal of the University of Ottawa to permit an oral hearing on the issue lacked procedural fairness

■Mavis Baker enter Canada in 1981, never receiving permanent resident status
■3 children were born in Canada
■Baker was diagnosed with schizophrenia & applied for welfare
■Determination of illegally working in Canada, led to her deportation order in 1992
■She applied for an exemption to remain in Canada on humanitarian & compassionate grounds
■1994 Baker was ordered removed from Canada
■Deportation order was stayed - why? - waiting SCC ruling
■1999 - SCC ruled: that Baker be allowed to reside in Canada

■Applicant Sawyer, an owner of horses, had been suspended from racing for 10 years, after a hearing before the Ontario Racing Commission
■The lawyer who represented the commission also wrote the decision
■This constituted a "denial of natural justice"
■Judge: "I think Mr. Laskin is right in his submission that justice cannot appear to have been done when the determination of how a case was decided depends, not upon the reasons over the signature of the real author"

■Status
■Notice
■Disclosure
■Adjournments or Stays
■Effective Participation (Right to Counsel)
■Public or Private (in Camera) Hearings
■Evidence
■Witnesses
■Proof
■Evidence by Compulsion
■Orders and Decisions
■Bias

■While in the Kingston Pen., Sheenan was assaulted in 1970 and assaulted during the 1971 riot.
■The Criminal Injuries Compensation Board denied his claim:
1. he himself was guilty of criminal behaviour
2.Sheehan and his assailants were in a federal pen. and outside the jurisdiction of Ontario
3.no evidence that Sheehan made application to another government, department, ministry of agency, to obtain compensation for injuries

■Ontario Divisional Court (did not go to a higher court) wrote that the Board has; "disentitled inmates of federal penitentiaries, as a class to compensation under the Act" (309).
■Court concluded that:
1. none of the 3 circumstances considered by the Board were relevant
2.There was no obligation to compensate Sheehan - but decision needed to be bona fide and the principles of fairness must apply
3.The Court of Appeal declared that Board's must be free from judicial intervention

■inmates in Matsqui Penitentiary, British Columbia
■took a guard hostage at knifepoint and confined him for 5 hours
■they were charged and sent to a maximum security prison and placed in segregation
■the Segregation Review Board recommended the men be placed in general population
■Director refused to do so.

■Cardinal & Oswald appealed to the Supreme Court that they had not received a fair hearing
■Director did not adhere to the procedural requirements of the Segregation Review Board
■Director not required to make independent inquiry - relied on information received from the Warden
■Director is required to hear what appellants have to say that would be relevant to their release
■SCC Decision: Prison administration is of a special nature and should not be "unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements"

Re Howard and the Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution
■Inmate's behaviour resulted in 5 internal charges laid:
1.possessing contraband
2.using indecent or disrespectful language to another person
3.an act calculated to prejudice discipline or good order of the institution (inciting)
4.disobeying a lawful order
5.threatening assault
■requested counsel at his disciplinary hearing which was denied

■Howard claimed his Charter rights were violated - right of Fundamental Justice
■Penalty could result in loss of earned remission
■Justice Thurlow; "I am of the opinion that that the enactment of s. 7 has not created any absolute right to counsel in all proceedings"
■Further concluding; "On the whole, I am of the opinion that the refusal of the appellant's request for counsel was a refusal of the opportunity to which he was entitled to adequately present his defence ... Appeal allowed"

1)Reconsidered: Under legislation such as the Statutory Powers Procedure Act, some agencies are given the power to review or reconsider the decision made and to change it, if appropriate
2)Appeal: The second option to the party in this example would be to appeal the decision
-ex: decisions from the Workplace Safety and Insurance Board are appealed to the Workplace Safety and Insurance Appeals Tribunal and this is the only appeal avenue
3)Judicial Review: The third way a decision of an agency can be challenged is by application for judicial review - Divisional Court

■Dr. Q (therapist) was treating Ms T (patient) for depression
■Ms. T alleged she had a sexual relationship with Dr. Q. for 16 months. Dr. Q denied the allegation
■The College of Physician and Surgeon's Discipline Committee heard the complaint and it came down to; the question of credibility and corroborating evidence.
■The committee accepted Ms. T's evidence and found Dr. Q guilty of infamous conduct and was suspended for 18 months.
Section 73 of the Act provides a right of appeal to the British Columbia Supreme Court - Dr. Q appealed

■BC Supreme Court - held that the evidence was not 'sufficiently cogent' and allowed Dr. Q's appeal
■SCC Decision: Criticism on the above decision - judge used decision that would be used in the Court of Law, not tribunal.
-Correctiveness v. reasonableness e.g. a letter sent by Dr. Q. to Ms. T raised "suspicion - of an affair - reasonable conclusion to reach that there was inappropriate conduct
-McLaughlan - "I conclude that the reviewing judge erred by applying too exacting a standard of review". Role of appeal judge was to determine whether the Committee had applied the correct standard of review