ADMIN LAW FRAMEWORK GUIDE:

I. JUDICIAL REVIEW
a. Judicial review (JR) is the process that allows courts to supervise administrative tribunals’ exercise of their
statutory powers.
i. To ensure administrative bodies are not stepping outside of the powers that have been delegated
to them by government or abusing the authority that has been bestowed upon them.
b. JR of administrative action is ONLY available for decisions made by a governmental or quasi-
governmental authority.
i. Enables persons to challenge state actions and decisions.
c. JR ensures administrative tribunals follow the rule of law.
d. JR should be the LAST RECOURSE, must exhaust all other options first.
i. For example, if there is an internal appeal process, this should be exhausted prior to bringing
judicial review.
II. PRELIMINARY ISSUES
a. Step 1: Determine if JR is an option for your client.
i. NCA Exam Question: “Can your client seek judicial review?”
1. You cannot challenge every administrative tribunal.
2. Private colleges and other private organizations are not granted authority via a
governmental authority.
b. Step 2: 5 Preliminary issues must be answered in the affirmative to move forward.
i. Must be a public body:
1. One of the key threshold questions is: whether the Tribunal whose actions are being
challenged is a public body.
2. Only public bodies can be subject to JR.
a. To determine if it is a public or private body:
i. Tribunal’s functions and duties and the source of its power and
funding.
ii. Whether the government directly or indirectly controls the body.
iii. Whether the government would have to occupy the field if the body
were not already performing the function it does.
3. If after reviewing you determine the Tribunal is a public body, then it will be subject to
public law = JR.
a. It is part of the machinery of government (MacDonald v Anishinabek Police
Service).
ii. You must have standing:
1. A party seeking to challenge administrative action should determine whether she/he has
standing.
2. There are two types of standing:
a. (1) Individual standing – it is said that the test for standing is whether the
applicant is a person aggrieved by the administrative action.
i. A person aggrieved is one who will suffer some peculiar grievance
of their own beyond some grievance suffered by them in common
with the rest of the public.
b. (2) Public Body Standing (Finlay v Canada) – threefold test has to be
applied:
i. Is the matter serious and justiciable (suitable for a court to hear)?
ii. Is the party seeking standing genuinely interested in the matter?
iii. Is there any other reasonable and effective way for the matter to be
solved/addressed?

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 iii. Which court to apply to:
1. Both federal and provincial courts have JR jurisdiction.
2. Which court has jurisdiction to conduct JR, unlike appeals, is not set out in the
Tribunal’s enabling statute.
3. The court is determined by whether the source of impugned authorities’ power is
provincial or federal (what is being called into question).
a. This component is fairly easy to address.
b. Just search in the question whether it states federal or provincial.
iv. Deadlines:
1. No deadlines have been missed.
2. Some statutes impose deadlines.
a. For example, Federal Court Act states that JR applications from Federal
Tribunal’s must be made within 30 days from the time the decision or order is
made (decision that is being challenged).
v. Must have exhausted all other recourse:
1. The plaintiff must establish that they exhausted all other adequate means of recourse
for challenging the Tribunal’s actions (Harelkin).
a. For example, was there an internal Tribunal appeal?
c. Summary of Test for whether JR is Available/An Option:
i. The tribunal is a public body;
ii. The client has standing;
iii. The court you must apply to is clear;
iv. No deadlines have passed; and
v. You have exhausted all other recourse or possible remedies (i.e. perhaps you have gone through
the Tribunal’s internal appeal process and the action/decision has been confirmed);
d. You will NOW move on to the “substance” of the question.
i. The foregoing discussion will not be more than 5 to 10 marks of an entire question.
ii. It is common for this examination to contain two questions (50% each; 40% and 60%, etc.).
iii. The rest of your marks will come from your discussion about either substantive review or
procedural fairness.
iv. The Administrative law exam usually is problem-based.
e. Finlay v Canada
i. The respondent meets the criteria laid down for the discretionary recognition of public
interest standing:
1. His action raises justiciable issues.
2. The issues are serious ones.
3. The respondent has a genuine interest in them.
4. If the respondent were denied standing, there would be no other way in which the
issues could be brought before a court.
a. The respondent should be recognized as having standing to sue for the
injunctive, as well as the declaratory, relief prayed for in his statement of
claim.
ii. If the four conditions above are satisfied, then public interest standing will be granted.
iii. What does this mean?
1. If an individual is not personally impacted or they do not have a personal stake in an
outcome, then they can still succeed in bringing judicial review if they satisfy the Finlay
criteria, as set out in the box above.
III. SUBSTANTIVE REVIEW OR PROCEDURAL FAIRNESS
a. The next step is to ASK – is a decision or action(s) being challenged or BOTH?
i. There are two potential avenues:
1. Substantive Review; or

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 Substantive Review à Application of substantive review will be triggered
a.
when you take issue with the actual decisions.
b. You will always begin by asking, “What is the standard of review?”.
2. Procedural Fairness
a. Procedural Fairness à The fact that a decision is administrative and affects
the “rights, privileges or interests of an individual” is sufficient to trigger
application of the duty of fairness.
b. Cardinal v. Director of Kent Institution; Nicholson v. Haldimand-Norfolk
Regional Police Commissioners (triggered when you have a problem with the
PROCEDURE/PROCESS as to how they came to that decision).
c. For example, was the plaintiff not given notice?
IV. SUBSTANTIVE REVIEW (THE DECISION IS IN THE ISSUE)
a. Standard of Review (SOR)
i. What is the SOR?
1. The Standard of JR refers to the level of deference the courts will show to a particular
administrative decision maker (ADM).
2. What is DEFERENCE?
a. Think of it how much weight you allow their decision to have.
b. If the decision is ultra vires (not within the Tribunal’s jurisdiction), then the
decision WILL NOT be afforded MUCH deference.
i. It can be correct or incorrect (i.e., if it is a jurisdictional question,
the question would be: “Did the tribunal have jurisdiction or did it
not have jurisdiction?”)
1. The Tribunal is not afforded much leeway in the matter.
c. If there is a HIGH LEVEL of deference (i.e., the statute setting out the power
of the Tribunal tells you that they have ultimate decision-making power), the
decision can be one within a range (i.e., strict, and less strict) of options.
i. If the decision is within this range, it will suffice.
ii. This is very loose language to give a gist of the issue.
ii. How do we Determine which SOR is applicable?
1. The level of judicial deference often determines the outcome of the case.
2. In Dunsmuir v New Brunswick, the SCC overhauled its approach to determine the
standard of review and set out a framework for the analysis.
3. Although, Dunsmuir remains a well-known case, the approach to the SOR has evolved
since 2008, most significantly with the SCC’s decision in Edmonton (City) v. Edmonton
East (Capilano) Shopping Centres. Ltd. and VAVILOV!
a. Dunsmuir altered the SOR from 3 standards to ONLY 2.
i. Dunsmuir is NOT GOOD LAW and should not be used as a test for
the analysis of what SOR is applicable.
b. Dunsmuir v Canada
i. Key Takeaways Even Though It Is Not Good Law:
1. Before Dunsmuir, there were three categories, but this case created two possible
standards of review:
a. Reasonableness; and
b. Correctness.
c. Capliano Test
i. Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. made the standard of
review much simpler.
ii. Capilano Test:
1. There is a presumption that a standard of reasonableness will apply.

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 2. BUT issues that fall within the narrow correctness categories identified in Dunsmuir will
attract a standard of correctness.
3. Capilano said that it will NOT generally be necessary to perform the contextual analysis
described in Dunsmuir.
4. HOWEVER, with VAVILOV, we know now Dunsmuir is no longer good law and as such,
the contextual analysis has been abolished!
5. Further, the categories for the standard of correctness have been collapsed down to
three.
iii. Correctness Standard (3) Categories:
1. the resolution of constitutional questions;
2. questions of central importance to the legal system as a whole; and
3. issues of overlapping jurisdiction.
a. Note: Vavilov says that jurisdictional questions, even in their purest form, will
no longer attract correctness review.
iv. IF THESE THREE CATEGORIES ARE NOT APPLICABLE = DEFAULT STANDARD OF
REASONABLENESS.
v. STANDARD OF REASONABLENESS IS THE AUTOMATIC DEFAULT, UNLESS THE THREE CATEGORIES
APPLY.
d. Standard of Correctness
i. If it is determined that the standard is CORRECTNESS because one of the three categories is
applicable:
1. In Ryan, the court held that where a correctness standard is imposed, the court may
undertake its own reasoning process to arrive at the result it judges correct.
2. When applying the correctness standard, a reviewing court will NOT SHOW DEFERENCE
to the decision maker’s reasoning process; it will rather undertake its own analysis of
the question.
3. The analysis will bring the court to decide whether it agrees with the determination of
the decision maker.
4. IF NOT, the court will substitute its own view and provide the court with the answer.
5. From the outset, the court must ask whether the tribunal’s decision was correct.
e. Stewart v Workplace Health, Safety and Compensation Commission
i. Statute:
1. NBCA applied the correctness standard in reviewing the interpretation of the term
“accident” in a federal statute.
2. There was an Appeal by Stewart from the decision of the Workplace Health, Safety and
Compensation Committee Appeals Tribunal, which held that term “accident” under the
Government Employees Compensation Act did not include the gradual onset of stress as
a compensable injury (i.e., think of how psychiatric harm has become an important
component of negligence).
3. The Tribunal held that pursuant to s. 4(2) of the Act, a claimant could only expect to be
eligible for the same benefits as provided for under the Workers' Compensation Act.
ii. Facts:
1. Stewart was 60 years old.
2. In 2003, she was placed on stress leave because of stress-related symptoms including
insomnia, crying spells, fatigue, and lack of concentration.
3. She worked for Public Works and Government Services Canada for approximately 23
years.
4. As a result of her symptoms, Stewart was unable to return to work. A psychologist and
family physician confirmed the stress diagnosis.
iii. Holding:
1. The appeal allowed in part.

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 2. The matter was remitted back to Appeals Tribunal to determine whether the gradual
onset of stress constituted an accident under the Government Employees'
Compensation Act.
3. The Standard of Review was Correctness – THEY WERE DETERMINING A DEFINITION
OF A LEGAL TERM.
4. The Appeals Tribunal erred in concluding the definition of “accident” in the Workers'
Compensation Act was imported into the definition of “accident” set out in the
Government Employees Compensation Act.
f. Standard of Reasonableness
i. Determining whether a decision is reasonable or not will not always be straightforward.
ii. “A court applying the reasonableness standard does not ask what decision it would have made in
place of that of the administrative decision-maker, attempt to ascertain the ‘range’ of possible
conclusions that would have been open to the decision-maker, conduct a de novo analysis or
seek to determine the ‘correct’ solution to the problem,” the majority wrote in their Vavilov ruling.
iii. The court held that the two main fundamental flaws that make decisions unreasonable are:
1. that there is a “failure of rationality internal to the reasoning process,” and
2. that a “decision is in some respect untenable (flawed) in light of the relevant factual
and legal constraints that bear on it.”
iv. Before the case of Vavilov, the remedy that was granted when an unreasonable decision was
found was to send the matter back to the administrative decision-maker for redetermination.
v. However, the court in Vavilov discussed at length whether the decision should be sent back to
the administrative body or tribunal, or in the alternative, whether the matter should be decided by
the court itself.
vi. It is NOW a decision for the administrative body to make.
1. HOWEVER, remitting the matter is not efficient if “it becomes evident to the court, in the
course of its review, that a particular outcome is inevitable and that remitting the case
would therefore serve no useful purpose”.
vii. Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association case rules
apply to many standards of reasonableness situations:
1. “Deference (high) under the reasonableness standard is best given effect when
administrative decision makers provide intelligible and transparent justification for
their decisions, and when courts ground their review of the decision in the reasons
provided.” (Delta Air Lines Inc. Lukacs).
viii. Providing Reasons vs. No Reasons:
1. If you are dealing with substantive review (and not procedural fairness); then it is very
likely that reasons were provided.
2. If they were not provided, then you would be most probably challenging the process
that the Tribunal used to reach their decision and dealing with procedural fairness as
opposed to substantive review.
a. If reasons were not provided (i.e., a situation that involves challenging both
the decision and the procedure OR a situation that does not impose a duty to
give reasons; Mavi) “it is entirely appropriate for courts to consider the
reasons that could be offered for the decision when conducting a
reasonableness review” (Alberta).
3. When assessing whether the decision was intelligible à Ask:
a. Did the decision maker use reports and background information to arrive at
their decision?
b. Did they apply sound reasoning?
c. Did they provide reasons, with which you can review and thus more easily
determine whether their reasoning is sound and intelligible?

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 4. Regarding transparency, if reasons were provided and great detail, then this would
satisfy this element.
a. Dunsmuir’s requirements of “justification, transparency and intelligibility” for
reasons.
5. In Sharif v Canada (AG), the court concluded that “the lack of reasoning was a
standalone basis for review (judicial review) ...the decision-maker has been delegated
power to make decisions; and the reasons offered are important for the court to
determine the legality of a decision” = if no reasons, judicial review.
ix. Reasonableness of a Decision:
1. To decide if a decision is reasonable, the court must inquire information:
a. The process of articulating reasons (concerned mostly with the justification,
transparency, and intelligibility within the decision-making process [Alberta]);
AND
b. The outcomes reached (does the decision fall within a range of possible
outcomes that are defensible considering the facts and the law, if so, the
court will exercise deference – this can be supported by precedent and similar
case law).
x. Reasonableness Review and Statutory Interpretation:
1. This would be somewhat of a sub-category.
a. Dunsmuir stated that deference should be granted to administrative bodies
interpreting their home statutes or statutes closely connected with those
statutes.
2. Communications, Energy and Paperworks Union of Canada:
a. It was held that based on the board’s findings of fact and its reliance on the
arbitral consensus for determining the scope of the employer’s rights under
the collective agreement in such circumstances, the decision was a
reasonable one.
b. This arbitral consensus, which was carefully applied by the board, helps
inform why its decision was reasonable on the facts of this case.
3. Mclean v British Columbia:
a. They saw no reason to interfere (this is usually the case when a decision-
maker is afforded deference).
b. “The Commission holds the interpretative upper hand: under reasonableness
review, we defer to any reasonable interpretation adopted by an
administrative decision maker, even if other reasonable interpretations may
exist”.
V. PROCEDURAL FAIRNESS (THE PROCESS IS IN THE ISSUE):
a. Decision makers are required to follow the rules of procedural fairness throughout their decision-making
process.
i. Simply put, if you are unfair in the manner, you carry out a decision, then it is likely to breach
the rules of procedural fairness.
b. It is possible that both procedural fairness and substantive review are attracted.
i. For example, if you fired the employee and the decision was erroneous (i.e., they are following all
the rules, performing to standards, there is no mandatory retirement), then the decision itself
(along with the procedure you used to reach the decision) would be called into question.
c. THERE ARE 3 STEPS TO APPROACHING THE DUTY OF PROCEDURAL FAIRNESS (PF):
i. STEP 1: WHEN IS THE DUTY OF FAIRNESS OWED? (THRESHOLD)
ii. STEP 2: WHAT LEVEL OF PROCEDURAL FAIRNESS IS REQUIRED?
iii. STEP 3: WHAT IS THE CONTENT OF THE DUTY OF FAIRNESS?
iv. STEP 1: WHEN IS THE DUTY OF FAIRNESS OWED? (THRESHOLD)
1. What is the threshold for the application of the duty?

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 a. In other words, “is there a duty of fairness owed in the first place?”
2. Although, the duty of fairness applies to a wide range of decisions, there remains
decision to which it does not apply (this is rare).
3. Rights, interests, and privileges.
a. The duty of fairness applies to any decision that affects an individual’s rights,
interests, or privileges (Nicholson).
4. Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners:
a. Facts:
i. Nicholson served as a constable for 15 months and was discharged
by the board without being given an opportunity to make
submissions.
ii. He sought Judicial Review and succeeded in the Divisional Court.
iii. An appeal by the board was allowed, and Nicholson appealed to the
Supreme Court.
b. Held/Reasoning:
i. Justice Laskin argued that the present case fell into the “admin or
executive” field, and thus, the constable was entitled to a general
duty of fairness.
ii. A notion of fairness, which involved something less than the
procedural protection afforded by traditional natural justice, had
emerged.
iii. Laskin held that the appellant should have been told why his
services were no longer required and given an opportunity,
whether orally or in writing, to respond (notice and reasons).
iv. Status in office deserves this minimal protection, however brief the
office was held.
c. This case expanded the application of procedural fairness.
d. Fairness should be applied almost in every circumstance – it is the LEVEL OF
FAIRNESS that typically tends to be in issue (determining the level in each
case will depend on the facts).
d. Limitations on The Scope of Duty of Fairness
i. The duty applies to decisions, meaning final decisions.
1. Rarely will it apply to investigations or advisory processes that do not have
consequences.
ii. The duty DOES NOT APPLY to legislative actions.
1. The Supreme Court of Canada always insisted that the duty of fairness does not apply to
legislative actions (Reference RE Canadian Assistance Plan).
2. The court never explained the meaning of legislative functions, BUT it is clear that
primary legislation, whether passed by Parliament or legislatures is NOT subject to the
duty of fairness.
3. Courts comes into the picture when legislation is enacted and not before.
iii. Are policy decisions covered by the legislation exemption (below in chart)?
1. The legislative exemption includes decisions that may be described as policy decisions
that are general in nature.
2. In Martineau, Dickson wrote: “A purely ministerial decision, on broad grounds of public
policy, will typically afford the individual no procedural protection, and any attack upon
such a decision will have to be found upon abuse of discretion.
iv. Exemptions to Breaching Procedural Fairness:
1. EMERGENCY CASES
a. The duty of procedural may be suspended/abridged in the event of
emergency (Cardinal v Direction of Kent Institution).

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 b. Whether an action without prior notice or initial hearing is justified depends on
whether there is genuinely a need (R v Randolph: criminal activity).
2. LEGISLATIVE EXEMPTIONS
a. Are Cabinet and Ministerial Decisions covered by legislative exemption?
b. They are not exempt per se, but it will often be easy characterize Cabinet and
Ministerial decisions as legislative, and as a result be exempt from the duty
(as mentioned above in point II).
c. Inuit Tapirisat is a good example.
i. In this case, the Federal Cabinet rejected an appeal from a decision
made by CRTC without allowing the petition to be heard.
ii. The court has emphasized the unique role and responsibilities of
the executive as a reason for not extending the duty of fairness to
ministerial decisions.
d. Is subordinate legislation covered by the legislative exemption?
e. This is legislation delegated to a third party to make/devise.
f. Arguably there is less reason to be concerned with subordinate legislation
because political approval for such legislation is subsidiary in nature.
g. The legislation exemption itself is subject to exceptions.
h. In Homex, the SCC concluded that the passage of the municipal bylaw was
subject to fairness.
i. Having been unable to resolve a dispute with a developer, the
village passed a bylaw deeming the lots purchased not to be a
registered plan of subdivision.
ii. The developer thus could not sell the lots without the village’s
permission.
i. Homex is a critical case, in that, when you are confronted with a case where
legislative actions are involved, Homex will provide you with a clear exception
as to when the legislative actions are reviewable.
j. Remember: legislative actions are typically exempt (the duty of fairness
does not apply).
3. Homex Realty v Wyoming:
4. Rule: Right to be heard when government body seeks to alter property rights – further
develops principle that legislative action is reviewable if a law is specific to individual.
5. Held: The right to a hearing does not spring from the fact that there are competing
groups or individuals, some of whom happen to be opposed to the by-law. It results
from the fact that the bylaw interferes with the private property rights of this one owner.
a. The bylaw in question was not of wide and general application but was rather
aimed at deliberately limiting the rights of Homex, entitling it to some
procedural safeguards, notice of the proposed bylaw, and the opportunity to
be heard.
6. Takeaways from Homex case:
a. The fact that a municipality made a policy decision that had a specific target
was crucial in the court’s decision that Homex was entitled to procedural
protections.
b. However, where a bylaw or subordinate legislation of a more general
character is being enacted or promulgated, claims to procedural entitlements
even by those affected immediately may be either diminished or eliminated.
c. Therefore, when you have legislation involved, determine if it is of a “general
nature” OR “specific nature”.

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 d. General Nature:
i. If legislation is broad and general, it will impact everyone in that
realm (i.e., builders, farm associations, etc.).
ii. The rules apply to everyone.
iii. Not every individual impacted can make a challenge.
iv. This would be overbearing on the judicial system, and if, one case is
heard, that would mean every other impacted individual/group
would be entitled to fairness duties, hearings, and so forth.
e. Specific Nature:
i. If, on the other hand, the legislation is specific and it was tailored to
one group, or impacted only one group/person/entity, it would make
sense that if it was unjust or lacked procedural fairness, that that
group or individual would be entitled to procedural fairness.
ii. This entity is being singled out and deserves or is entitled to make
submissions.
v. STEP 2: WHAT LEVEL OF PROCEDURAL FAIRNESS IS REQUIRED?
1. How is the content of the duty determined?
a. Courts FIRST determine the DEGREE of fairness before particularizing the
content and deciding whether the duty has been met.
2. The following factors are used in determining the nature and extent of procedural
fairness (Baker) – essentially, you will always follow the Baker analysis for this step
(level):
3. The nature of the decision being made, and the process followed in making it (look
at closeness of administrative process to judicial process):
a. Legislative and general/discretionary policy suggests less procedural fairness
obligations.
b. Administrative and specific resembles adversarial court-like process/fact-
finding and credibility suggests more procedural fairness obligations.
c. Less procedural fairness obligations in emergency situations.
d. Less procedural fairness obligations for non-final decisions (because if it is
final, it would have a greater impact, there is no room for appeal, so you
would want to be certain the process was fair; mainly due to impact/effect).
4. The nature of the decision and the process followed in making it:
a. In Knight “the more the process provided for, the function of the tribunal, the
nature of the decision-making body, and the determinations that may be
made to reach a decision resemble judicial decision making, the more likely it
is that procedural protections closer to the trial model will be required by
Procedural Fairness”.
b. If a decision is judicial in nature or adjudicative in nature, it will require more
extensive procedural protections than regulatory decisions which impact
social and economic policy.
i. For example, in Baker, the decision was very different from a
judicial decision and indicated fewer procedural protections.
5. The nature of the statutory scheme and the terms of the statute pursuant to which
the body operates:
a. Consider if there is a general statute specifying procedures such as Ontario’s
Statutory Powers Procedures Act.
b. Does the statute or regulations give procedural fairness rights or override
common law procedural fairness obligations (the question will provide you
with the statute provisions and it will be clear as to whether there are specific
rights or rules).

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 c. Where the decision-making process includes preliminary steps, the
requirements of fairness may be less/minimal.
d. Existence of an appeal is critical!
e. It is an important consideration in deciding whether and to what extent
reasons for a decision are required.
6. The nature of the statutory scheme and the terms of the statute pursuant to which
the body operates:
a. Courts are attentive to the terms of the legislation which authorizes officials to
act.
b. I.e., If the act provides the official with an investigative or fact-finding function
as a preliminary measure to a hearing before a decision-maker will render a
final decision, then little procedural protections would be owed at the
preliminary stages.
c. I.e., If, however, no appeal procedures are provided for in the act, greater
procedural protections would be required.
7. The importance of the decision to the individual:
a. This factor is very easy to determine.
b. The more important the decision, the more protection that should be
afforded.
c. It is best to reference Baker and explain how the decision was very important
as it clearly strongly impacted her life.
i. She had a family in Canada.
ii. She had established a life here. She was going to have to leave this
all behind.
iii. A small sum of money would be a situation in which the decision
does not have a great impact and is of little importance.
8. The legitimate expectations of the person challenging the relevant decision (two
meanings) (usually high or low):
9. Two Types:
a. Where the person is led to understand that he will be afforded a particular
procedure before a decision is made, even though the procedure is not
otherwise required (if this is the case, the individual is entitled to procedural
fairness before the decision is made).
b. (1) To demonstrate:
i. The Minister promises a committee he will hold a vote before
deciding to extinguish the committee.
ii. This is not otherwise a rule, nonetheless, he states this to them
orally or in writing.
iii. If he then goes on to terminate the committee without holding the
vote, he would be breaching procedural fairness.
c. (2) Where a person is led to expect a particular outcome from a decision-
making process.
i. The doctrine of legitimate expectation:
1. Legitimate expectations look to the conduct of the public
authority in the exercise of a discretionary power including
established practices, conduct or representations that can
be characterized as clear, unambiguous, and unqualified,
that has induced in the complainants a reasonable
expectation that they will retain a benefit; to be taken as
legitimate, such expectations must not conflict with a
statutory duty.

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 ii. Legitimate expectation can be raised when representations are
made about available procedures or substantive results.
1. Where representations about procedures are made, those
procedures would be expected.
2. Where a claimant legitimately expects a certain result,
fairness may require more procedural rights than would
otherwise be accorded.
10. Deference to the procedural choices made by the Decision Maker:
a. Look at the institutional constraints on agency/practicalities, such as not
overburdening the system, expediency, informality, etc. which can all be trade-
offs against requiring high procedural fairness obligations.
b. The analysis of what procedures the duty of fairness requires should also
consider and respect the choices of procedures made by the agency itself,
especially if the statute leaves it to the decision maker to choose the
procedures itself or when the agency has expertise in determining what
procedures are appropriate in the circumstances.
c. Agencies may have a better appreciation than courts in deciding the
appropriate compromise between fairness and efficiency, effectiveness, and
feasibility.
d. This is especially true with agencies involved in high volume cases.
e. “The analysis of what procedures the duty of fairness requires should also
take into account and respect the choices of procedure made by the agency
itself, particularly when the statute leaves to the decision-maker the ability to
choose its own procedures, or when the agency has an expertise in
determining what procedures are appropriate in the circumstances”.
vi. After you have examined each factor and provided an analysis, you will engage in a
weighing/balancing act by using your judgment and determining what level of procedural
fairness should be afforded – from low to medium to high. There is really NO right or wrong
answer. You will be assessed on your ability to engage with all the factors.
vii. STEP 3: WHAT IS THE CONTENT OF THE DUTY OF FAIRNESS?
1. Once you determine the level of duty that is required, you apply this to the procedural
fairness content issues.
2. This will be the conclusion of your answer.
3. You should capture about 70% of the marks for the question thus far.
4. This is question specific.

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viii. Issues you will likely encounter (this is not exhaustive):

ix. Notice
1. Four issues are raised in notice.
2. Form:
a. Email? Written? Advertisements?
b. Written notice is the best and safest manner in which to give notice (especially
for high-end matters). Why?
c. Because it is hard evidence of your notice, and you can utilize the document
as a defence in court!
d. Courts may sidestep the issue of form so long as the recipient got actual
notice (this would be in the case of a mere defect and is a highly improbable
situation).
x. Service:
1. High-end matters = personal service.
2. May have to consult the statute – there may be provisions that specify the service
procedure.
3. Courts will recognize the lack of reliability of the postal service.
a. Torchinsky (MAN QB 1981): Municipality mails notice for tax reassessment; it
is delivered after the limitation period. It was held that the notice was
INEFFECTIVE. They used mail at their own risk.

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 b. Rymal (OCA 1981): Spencer, the landowner, mailed notice of appeal which
arrived a day late. It was held it was unfortunate for him, as he should have
recognized that mailing is not the most reliable method. Moreover, waiting
until last minute to mail without considering delay is not practicing due
diligence.
c. Hardy (1985): Notice for school closure was sent out. It was held that it was
unreasonable to expect to have personal service to every parent in this
situation.
xi. Time: (length of notice before hearing)
1. Depends on the complexity and seriousness of the matter.
2. Time to prepare for the hearing.
a. Torchinsky: in terms of timing, far enough in advance so the party can
prepare and decide whether to participate or not is sufficient.
xii. Content:
1. What is the process? What is at stake? What are the consequences of the decision
contemplated?
a. Taylor (OCA 1970): A trainer drugged a horse. The trainer got notice that
the decision was to be made by the Racing Commission. He got suspended.
He challenged the decision arguing that there was no warning of the severe
penalty. It was held that an experienced trainer should have known what was
at stake.
b. Therefore, he did not require detailed “content” within the notice elaborating
and explaining the consequences of his actions. This was part of his job and
profession, and as such, he would have been informed of such penalties.
2. Consider whether the notice is sufficient. This depends on the circumstances in each
case.
xiii. Discovery:
xiv. Northwestern General Hospital: Does a tribunal have authority to order discovery?
1. Facts:
a. There was a complaint of systemic race discrimination by the hospital.
b. HRC (human rights) decides to proceed with the complaint.
c. The hospital asks for pre-hearing discovery = disclosure of all evidence
gathered during the investigation period.
d. The Board of Inquiry orders for discovery and claims it has jurisdiction in the
Statutory powers Procedure Act.
e. Section 8 = where reputation is at issue, you are entitled to discovery
2. Conclusion:
a. It was held that there is jurisdiction for the discovery order by the tribunal
(section 8 of the SPPA.
xv. Stinchecombe is a relevant case (however, keep in mind it pertains more to criminal law; it is
used more as a general guiding principle here).
1. This case tells us, it is only fair if you are being tried or there is a hearing, that you
“know the case before you” (i.e., the case to be met.
2. In other words, you know what you are being accused of. If you don’t, how can’t you
defend yourself properly?
3. To properly prepare, you must be aware of the sufficient details.
xvi. Right to Counsel
xvii. Post-Hearing Issues
1. Giving Reasons:
2. Firstly, you must ask “is there a duty to give reasons?”
3. Baker was the first case where it was declared that there can be a duty to give reasons!

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 4. Suresh later confirmed that yes, there can exist a duty.
5. Baker established that decision makers have a duty to give reasons whenever
important interests are at stake.
a. However, in the case, the notes of a junior officer were so riddled with
stereotypes and prejudice that the court found them to give rise to
“reasonable apprehension of bias”.
b. The duty of procedural fairness requires reasons where decisions have
important significance to the individual or where there is a statutory right of
appeal (because if this exists, then typically the case is serious).
c. This duty is usually met!
i. In order words, most cases will involve serious enough matters (and
thus impact the individual in a significant way) that they will require
reasons to be provided.
6. Policy Reasons for Giving Reasons (Pros):
a. More accountability.
b. Value for appeal and judicial review.
c. Legitimacy and fairness.
d. Better decisions – they have to think carefully, construct a rational argument
supporting their decision.
e. It allows for more consistent decision-making.
f. Less arbitrary (or the appearance thereof).
7. Cons of Providing Reasons:
a. Delay.
b. Inefficiencies.
c. Contrary to expediency ideal of administrative goals.
d. Can result in canned reasons.
e. Leads to a more formal process when the whole point of the endeavour was
to have an informal process.
8. What Should Reasons Contain?
a. Via Rail Canada Inc. v National Transportation Agency [2001]:
b. The decision-maker must set out its findings of fact and the principal evidence
upon which those findings were based.
c. The reasons must address the major points in issue.
d. The reasoning process followed by the decision-maker must be set out and
must reflect consideration of the main relevant.
e. Baker Analysis
i. The above post-hearing issue is one that is likely to come up.
ii. Let’s tie together the Baker analysis to the duty to give reasons to see the connections and how
the process should be carried out.
1. You have engaged the BAKER factors (5) and come to the conclusion that there is a
relatively high degree of procedural fairness that is owed.
a. Remember this is all about using your judgment. You can claim that the
procedural fairness level should be medium – high, or perhaps, even a 7/10
standard.
b. All it is about is demonstrating you understand how everything pieces
together.
c. What conclusions you come to will be judged and assessed on how you
support them.
2. Let’s assume that in the case you were given, the decision-maker did not provide
reasons.

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 a. If this is so, then since there is a relatively high level of procedural fairness,
you would comment along the lines of: “the decision-maker breached the
rules of procedural fairness by not providing reasons, as the matter to the
individual is significant and will greatly impact their life.
b. For this reason, they are deserving to know of the reasons that the
case/matter was decided against them.
c. As in the case of Baker, she was entitled to reasons due to the importance of
the issue and the consequences of it upon her life”.
3. You would just go through the possible ways that procedural fairness could have been
granted given the circumstances of the case.
4. What if the question you receive says she was given reasons, but they were point-form,
non-explanatory and not intelligible?
a. In this scenario, you could specific: “She was entitled to transparent and
intelligible justification, as discussed in Alberta.
b. Since the decision was of great importance to the plaintiff, it should have
contained the elements laid out in Via Rail, particularly the reasons should
have addressed the main points in issue...).
c. You would simply list the aforementioned points in the case.
d. Another example relating to, for instance, pre-hearing issues, timing
specifically.
e. If you determined even a moderate level of procedural fairness, you should
recommend giving adequate notice.
f. Notice is a basic requirement in most cases.
5. In Torchinsky, it was held that a party should be given notice far enough in advance to
prepare.
a. This is loose language, but what it demonstrates is that you can be quite
general in this part of the question.

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VI. Recap:
a. Is judicial review even a possibility?
1. Consider and assess the 5 preliminary issues.
ii. If it is, move on, if not, stop here and state, “judicial review is not an option for the
client/plaintiff”.
b. What is in issue – the process the decision-maker carried out to reach his decision, the decision itself,
or both?
i. If the process is in issue, you must carry out a procedural fairness analysis.
ii. If it is the decision, you are dealing with substantive review.
iii. If it is both, you have quite a bit of work ahead of you (this will likely be the case in one of your
questions; if it is, expect this question to be worth around 50/60% of the exam).
c. The decision is in issue (substantive review):
i. What is the standard of review?
ii. The easiest method to answering this is to look at the list of what will attract the standard of
correctness first.
iii. If it does not apply, then it is always the standard of reasonableness.
iv. If it were correctness, your only job is to state that the court will make a decision as to whether it
is right or wrong (you can provide an opinion of what you think that might be).
v. If it is the standard of reasonableness, there is technically a lot you can bring in and it will all
depend on the facts of the case.
1. Remember, if there was justification provided, comment on whether it was transparent
and intelligible.
vi. Compare the decision to other case law.
vii. Do not focus on the process, just the decision itself. Did the decision-maker use research, did
they make a hasty decision, were they knowledgeable in the areas?
d. The process is in issue (procedural fairness):
i. You have ascertained the process is in issue.
ii. The first question to ask is, “Is procedural fairness even required as a duty”.
1. Remember, there are exception. If the question involves an exception, address it and
state the case law mentioned above.
iii. If it does not fall into one of the exceptions (recall: even if it is policies/legislation, if it is
individualized or targets one group, it will not be an exception and will instead be “an exemption
to the exception”.
iv. Most of the time, procedural fairness will be owed.
v. Quote Nicholson and state how if anyone’s rights, interests or privileges are affected, they are
entitled to procedural fairness.
vi. Then examine the question and creatively think, what was missing –
1. Did the decision - making give reasons?
2. Was their inappropriate delay?
3. Did they not provide adequate notice?
4. What made the process unfair?
5. Should they have been entitled to submissions?

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