SAMPLE PAGE Bias III: Substantive Review: 3: Contents of Procedural Obligations:
‘What would informed person, viewing the matter realistically and [Baker 5 Factors.]
1: Sources of Procedural Fairness: practically, and having thought the matter through, The function of JR is to ensure legality, reasonableness and fairness
conclude?’ (Committee for Justice and Liberty v NEB) of administrative process and its outcomes. Contents of Procedural Fairness:
(1) The Constitution: Process:
(1) Find Source; ! ‘substantive review’ can take place after original decision is ! procedural fairness is eminently variable, and its content is to be
(1) The Charter of Rights and Freedoms: (2) Is there Bias? made. Looks at way in which decision made. Includes an analysis of determined in the specifics of each case [L’Heureux-Dubé, Baker].
(a) Applies to all levels of gov’t (except universities: McKinney); [fact based.] what decision-maker considered and whether it was right/wrong.
(b) Can be used to invalidate legislation; (3) Remedies. These five factors from Baker, help assist court in determining
(c) Does not protect property rights; 1: What Standard of Review Applies? what level of procedural fairness would be owed to specific
(d) s. 32(1) limitations apply. (1) General rule; a person has a right to a decision by impartial individual with regard to specific decision
(s. 7) Everyone has right to life, liberty and security of the person decision-maker. (1) Introduction [mention all of them!].
and the right not to be deprived thereof except in accordance with (a) check the statute for potential requirements [state which decision is being challenged.]
the principles of fundamental justice (b) adjudicative boards are generally held to the standard of (1) Nature and processes of Decision Being Made
[is there life or liberty at risk? Would likely have to be courts (Committee for Justice and Liberty v NEB) Introduce the concept of substantive review: [Look at characteristics of decision-making process:
fundamental & apply to facts (i.e. offered housing, so they (c) standard is eased for boards dealing with policy matters ! (i) In Canada, there are two standard of review; correctness or discretionary, final, disciplinary matter; the more formal, the
aren’t homeless); liberty: has to be detention or involuntary.] ‘there had been a pre-judgment of the matter to such an extent reasonableness. Reasonableness allows the court to show more PF owed; the more ‘paper-based’ (i.e. applicant wants a
Includes: Refugee determinations; extradition; National security that any representation to the contrary would be futile’ [test] deference to the original decision-maker by; fishing license), the less PF owed.]
detention; Prison discipline; Parole determinations; Labour (2) Essential elements of the test for bias: R v Sussex Justices, In Dunsmuir, standard of review analysis created to determine Spectrum from judicial to administrative decision-maker [closer to
mobility; Child custody. Ex parte McCarthy: which of two standards of review applied. Only one standard judicial = higher PF.]
Does not include, proprietary rights or business/financial (a) It is the appearance of bias that counts, not the actual state of can be applied to review of a decision. (a) judicial decision-maker ! high level of PF [i.e.
interests. mind of the decision maker Reasonableness: whether decision falls within range of possible, professional misconduct hearing.];
! applies to all levels of government (b) It is what a reasonable person would conclude that matters. acceptable outcomes defensible in respect of facts and law. • More formal, no right to appeal (Baker);
! ‘everyone’ includes every human being in Canada (Singh) (c) It is of fundamental importance that justice should not only be correctness: if court does not agree, court will substitute its own • Adjudicating on someone’s rights or obligations (Suresh);
Singh [Refugee claimants denied refugee status. Argued s. 11 done, but should manifestly and undoubtedly be seen to be done. view and provide the correct answer. Reviewing court will not • Applying substantive rules to individual cases.
required that they should have received an oral hearing. Held: show deference to decision maker’s reasoning process. (b) administrative decision-maker ! low level of PF;
they were entitled to a hearing, as the procedures in the Act Newfoundland Telephone Co v Newfoundland [Public Utilities Board • Higher level of discretion;
were inadequate and violated the principles of fundamental regulated sole provider of telephone services. Wells appointed to (2) Factors Indicating correctness standard • Broad rules to be applied to a wide variety of decisions;
justice. Wilson J: s. 7 Charter applied due to a ‘well-founded board, even after he had previously been consumer advocate for • Large number of facts to be balanced (Congégation);
fear of prosecution’ if deported back to home country]. costs and made negative comments during both hearings and (ii) there are four ‘default’ factors that indicate the standard of • Power to grant exceptions from rules.
(s. 15(1)) Every individual is equal before and under the law and investigations. After W was appointed, he made negative comments correctness should apply, these include: Examples:
has the right to the equal protection and equal benefit of the law about executives (sequence of serious comments). Held: even (a) questions of central importance to the legal system as a • Decision serious nature and high discretion ! neutral
without discrimination (Equality provision). though this was during investigation phase only, bias was found and whole and outside the specialised area of expertise; PF (Baker; Suresh).
Guindon: tax evasion for vacation rentals. Can argue s. 11 decision void.] (b) the division of powers (federalism); • Decision discretionary and not serious ! low level of PF
here, but must rise to the level of a true penal consequence, Old St. Boniface Residents Association v Winnipeg (City) [City (c) jurisdictional boundaries between specialised tribunals; (Agraira; Mavi).
not just a monetary fine. council approved condo towers. City councillor previously advocated (d) true questions of jurisdiction (nb. the SCC has never found • Decision is serious in nature and no discretion ! high
[if you find s. 7 argument, do not stop. If SCC disagrees, want to for project at start. SCC: no bias. Support for project does not mean a question with this feature). level PF.
have more arguments.] position incapable of change. there was no evidence of previous [if one of above present, correctness standard applies, go to: (2) Nature of Statutory Scheme
relationship with developer and court took circumstances into (3) Conclude.] [’scheme: more than just legislation. Look at regulations,
(2) The Canadian Bill of Rights: account (common practice to advocate for certain projects).] [if none of these are present: continue.] guidelines, preamble, etc. What is legislation try to achieve.]
The right of the individual to life, liberty, security of the person and (i) language of statute [inferences from title, provisions, etc]:
enjoyment of property and the right not to be deprived thereof (1) Personal Bias (3) Is there any precedent or statutory standard, of which • Extensive procedure in Act, no appeal ! high level of PF
except by due process of law (s. 1(a)) & unless expressly standard to apply?
declared Cannot deprive a person of the right to a fair hearing in (a) Prior Association
accordance with the principles of fundamental justice (s. 2(e)). Need to consider: (Newfoundland Telephone v Newfoundland) (a) If there is precedent, then the same standard of review should
(may include procedural fairness) (i) context, including the history of the relationship apply (Dunsmuir).
! applies to federal statutes only (s. 5). (ii) strength of the previous connection [for precedent consider: specific decision-maker, same
! Does apply to property rights (Authorson) [ownership.] (iii) lapse of time between prior association legislation, same type of question at issue.]
Authorson [A disabled war veteran. Department of Veteran Affairs Marques v Dylex [Member of Labour Relations Board previously (i) case law [needs to be very specific; same decision-maker,
managed benefits on his behalf, interest should have been paid. lawyer at a firm that had acted for one of unions. Held: there was same issue, same legislation]
Department of Veterans’ Affairs Act was passed, and prevented no reasonable apprehension of bias. Administrative agencies (ii) specific legislation that the decision was made under [may
any interest claims prior to 1990. Statute was challenged. SCC: A are not held to same standards as judges, and circumstances specify which standard of review applies]
not guaranteed procedural rights, as statute didn’t provide are important (size of pool of potential appointees).] (iii) general legislation [Alberta, BC (patent unreasonableness),
absolute guarantee of procedural rights before legislative action (b) Involvement with Investigation or Charging Decision Ontario, Quebec; may say which standard applies] [if Federal –
is taken. Only guarantees procedural rights before court/tribunal. Generally, a member who decision is being appealed cannot sit just say does not apply.]
Not afforded PF for legislative decisions, only in administrative on the appeal (may validate their own decision)
decisions.]. Committee for Justice and Liberty v NEB [Application (4) Does the decision violate an individual’s Charter rights?
Singh: Beetz J. (also for 3 judges): s. 2(e) Bill of Rights applied. regarding natural gas pipeline in McKenzie Valley. Chairman [if no ! (5)]
previously president of Canada Corporation Development.
(2) Legislation: Had assisted with pipeline development. Held: bias. Apparent (a) Where Charter rights are violated, there is a presumption of
impartiality would create reasonable apprehension of bias.] reasonableness;
(c) Attitudinal Bias
‘What would informed person, viewing the matter realistically and [Baker 5 Factors.]
1: Sources of Procedural Fairness: practically, and having thought the matter through, The function of JR is to ensure legality, reasonableness and fairness
conclude?’ (Committee for Justice and Liberty v NEB) of administrative process and its outcomes. Contents of Procedural Fairness:
(1) The Constitution: Process:
(1) Find Source; ! ‘substantive review’ can take place after original decision is ! procedural fairness is eminently variable, and its content is to be
(1) The Charter of Rights and Freedoms: (2) Is there Bias? made. Looks at way in which decision made. Includes an analysis of determined in the specifics of each case [L’Heureux-Dubé, Baker].
(a) Applies to all levels of gov’t (except universities: McKinney); [fact based.] what decision-maker considered and whether it was right/wrong.
(b) Can be used to invalidate legislation; (3) Remedies. These five factors from Baker, help assist court in determining
(c) Does not protect property rights; 1: What Standard of Review Applies? what level of procedural fairness would be owed to specific
(d) s. 32(1) limitations apply. (1) General rule; a person has a right to a decision by impartial individual with regard to specific decision
(s. 7) Everyone has right to life, liberty and security of the person decision-maker. (1) Introduction [mention all of them!].
and the right not to be deprived thereof except in accordance with (a) check the statute for potential requirements [state which decision is being challenged.]
the principles of fundamental justice (b) adjudicative boards are generally held to the standard of (1) Nature and processes of Decision Being Made
[is there life or liberty at risk? Would likely have to be courts (Committee for Justice and Liberty v NEB) Introduce the concept of substantive review: [Look at characteristics of decision-making process:
fundamental & apply to facts (i.e. offered housing, so they (c) standard is eased for boards dealing with policy matters ! (i) In Canada, there are two standard of review; correctness or discretionary, final, disciplinary matter; the more formal, the
aren’t homeless); liberty: has to be detention or involuntary.] ‘there had been a pre-judgment of the matter to such an extent reasonableness. Reasonableness allows the court to show more PF owed; the more ‘paper-based’ (i.e. applicant wants a
Includes: Refugee determinations; extradition; National security that any representation to the contrary would be futile’ [test] deference to the original decision-maker by; fishing license), the less PF owed.]
detention; Prison discipline; Parole determinations; Labour (2) Essential elements of the test for bias: R v Sussex Justices, In Dunsmuir, standard of review analysis created to determine Spectrum from judicial to administrative decision-maker [closer to
mobility; Child custody. Ex parte McCarthy: which of two standards of review applied. Only one standard judicial = higher PF.]
Does not include, proprietary rights or business/financial (a) It is the appearance of bias that counts, not the actual state of can be applied to review of a decision. (a) judicial decision-maker ! high level of PF [i.e.
interests. mind of the decision maker Reasonableness: whether decision falls within range of possible, professional misconduct hearing.];
! applies to all levels of government (b) It is what a reasonable person would conclude that matters. acceptable outcomes defensible in respect of facts and law. • More formal, no right to appeal (Baker);
! ‘everyone’ includes every human being in Canada (Singh) (c) It is of fundamental importance that justice should not only be correctness: if court does not agree, court will substitute its own • Adjudicating on someone’s rights or obligations (Suresh);
Singh [Refugee claimants denied refugee status. Argued s. 11 done, but should manifestly and undoubtedly be seen to be done. view and provide the correct answer. Reviewing court will not • Applying substantive rules to individual cases.
required that they should have received an oral hearing. Held: show deference to decision maker’s reasoning process. (b) administrative decision-maker ! low level of PF;
they were entitled to a hearing, as the procedures in the Act Newfoundland Telephone Co v Newfoundland [Public Utilities Board • Higher level of discretion;
were inadequate and violated the principles of fundamental regulated sole provider of telephone services. Wells appointed to (2) Factors Indicating correctness standard • Broad rules to be applied to a wide variety of decisions;
justice. Wilson J: s. 7 Charter applied due to a ‘well-founded board, even after he had previously been consumer advocate for • Large number of facts to be balanced (Congégation);
fear of prosecution’ if deported back to home country]. costs and made negative comments during both hearings and (ii) there are four ‘default’ factors that indicate the standard of • Power to grant exceptions from rules.
(s. 15(1)) Every individual is equal before and under the law and investigations. After W was appointed, he made negative comments correctness should apply, these include: Examples:
has the right to the equal protection and equal benefit of the law about executives (sequence of serious comments). Held: even (a) questions of central importance to the legal system as a • Decision serious nature and high discretion ! neutral
without discrimination (Equality provision). though this was during investigation phase only, bias was found and whole and outside the specialised area of expertise; PF (Baker; Suresh).
Guindon: tax evasion for vacation rentals. Can argue s. 11 decision void.] (b) the division of powers (federalism); • Decision discretionary and not serious ! low level of PF
here, but must rise to the level of a true penal consequence, Old St. Boniface Residents Association v Winnipeg (City) [City (c) jurisdictional boundaries between specialised tribunals; (Agraira; Mavi).
not just a monetary fine. council approved condo towers. City councillor previously advocated (d) true questions of jurisdiction (nb. the SCC has never found • Decision is serious in nature and no discretion ! high
[if you find s. 7 argument, do not stop. If SCC disagrees, want to for project at start. SCC: no bias. Support for project does not mean a question with this feature). level PF.
have more arguments.] position incapable of change. there was no evidence of previous [if one of above present, correctness standard applies, go to: (2) Nature of Statutory Scheme
relationship with developer and court took circumstances into (3) Conclude.] [’scheme: more than just legislation. Look at regulations,
(2) The Canadian Bill of Rights: account (common practice to advocate for certain projects).] [if none of these are present: continue.] guidelines, preamble, etc. What is legislation try to achieve.]
The right of the individual to life, liberty, security of the person and (i) language of statute [inferences from title, provisions, etc]:
enjoyment of property and the right not to be deprived thereof (1) Personal Bias (3) Is there any precedent or statutory standard, of which • Extensive procedure in Act, no appeal ! high level of PF
except by due process of law (s. 1(a)) & unless expressly standard to apply?
declared Cannot deprive a person of the right to a fair hearing in (a) Prior Association
accordance with the principles of fundamental justice (s. 2(e)). Need to consider: (Newfoundland Telephone v Newfoundland) (a) If there is precedent, then the same standard of review should
(may include procedural fairness) (i) context, including the history of the relationship apply (Dunsmuir).
! applies to federal statutes only (s. 5). (ii) strength of the previous connection [for precedent consider: specific decision-maker, same
! Does apply to property rights (Authorson) [ownership.] (iii) lapse of time between prior association legislation, same type of question at issue.]
Authorson [A disabled war veteran. Department of Veteran Affairs Marques v Dylex [Member of Labour Relations Board previously (i) case law [needs to be very specific; same decision-maker,
managed benefits on his behalf, interest should have been paid. lawyer at a firm that had acted for one of unions. Held: there was same issue, same legislation]
Department of Veterans’ Affairs Act was passed, and prevented no reasonable apprehension of bias. Administrative agencies (ii) specific legislation that the decision was made under [may
any interest claims prior to 1990. Statute was challenged. SCC: A are not held to same standards as judges, and circumstances specify which standard of review applies]
not guaranteed procedural rights, as statute didn’t provide are important (size of pool of potential appointees).] (iii) general legislation [Alberta, BC (patent unreasonableness),
absolute guarantee of procedural rights before legislative action (b) Involvement with Investigation or Charging Decision Ontario, Quebec; may say which standard applies] [if Federal –
is taken. Only guarantees procedural rights before court/tribunal. Generally, a member who decision is being appealed cannot sit just say does not apply.]
Not afforded PF for legislative decisions, only in administrative on the appeal (may validate their own decision)
decisions.]. Committee for Justice and Liberty v NEB [Application (4) Does the decision violate an individual’s Charter rights?
Singh: Beetz J. (also for 3 judges): s. 2(e) Bill of Rights applied. regarding natural gas pipeline in McKenzie Valley. Chairman [if no ! (5)]
previously president of Canada Corporation Development.
(2) Legislation: Had assisted with pipeline development. Held: bias. Apparent (a) Where Charter rights are violated, there is a presumption of
impartiality would create reasonable apprehension of bias.] reasonableness;
(c) Attitudinal Bias
