Standard of Review

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Standard of Review by Mind Map: Standard of Review

1. Administrative Tribunals Act

1.1. Reasons for Reform

1.2. Overview

1.3. Central themes

1.4. Important Provisions

1.4.1. Can a tribunal consider Charter/Constitutional Issues?

1.4.2. Limits on Juridical Review

1.4.3. SOR w/ Privative Clauses

1.4.4. Defines Patent Unreasonableness for discretionary decisions

1.5. Canada v. Khosa

1.5.1. Facts

1.5.2. Majority Analysis

1.5.3. Minority Analysis Overview If no privative clause... If there is a privative clause... Because.... The ATA...

1.5.4. Dissent

2. How to determine the Standard of Review

2.1. The Watershed (CUPE)

2.1.1. The beginning of “deference as respect” Jurisdiction Privative clause Patent unreasonableness Ambiguities No one interpretation is right- 2 Standard of Review

2.1.2. Sequels to CUPE Bibeault Beyond the Privative Clause Reasonableness Simpliciter

2.1.3. Result: SOR Spectrum

2.2. Analytical Structure (Pushpanathan)

2.2.1. Established a four-part test to determine SoR Presence of Privative Clause Expertise of Court Relative to Tribunal Purpose of the Act and Provision Nature of the Problem

2.3. Pre-Dunsmuir Caselaw

2.3.1. Correctness U. E.S., Local 298 v. Bibeault [1998 SCC] Canada (AG) v. Mossop [1993 SCC] Trinity Western U v. BC College of Teachers (BCCT) [SCC 2001]

2.3.2. Patent Unreasonableness v. Reasonableness simpliciter Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [SCC 1979] Canada (Director of Investigation and Research) v. Southam Inc., [SCC 1997] Law Society of New Brunswick v. Ryan [SCC 2003] Toronto v. CUPE, Local 79 [SCC 2003]

2.4. New Test (Dunsmuir)

2.4.1. Facts

2.4.2. The new standard of review analysis

2.4.3. Test

3. ....and discretionary decisions

3.1. What is discretion?

3.1.1. Definition

3.1.2. grant of discretion will use language of "may" instead of mandatory language such as "shall"

3.1.3. obj. v. subj. grants of discretion

3.2. History: abuse of discretion doctrine

3.2.1. Roncarelli v. Duplessis [1959] S.C.R. 121 Facts Broad Discretion Duplessis gets Commissioner to take away Roncarelli's liquor licence majority decision No such thing as absolute discretion Commissioner should have been the one making the decision, not Premier Duplessis Decision was arbitrary and goes against purpose of the act: violated rule of law dissent no limits on power in the statute no guidelines of decision in statute Commissioner did have absolute discretion

3.2.2. abuse of discretion doctrine 1. Improper Purpose/considerations 2. Bad faith 3. Dictation/influence 4. Wrongful Delegation of powers 5. Fettering 6. Unreasonableness (?)

3.2.3. Discretion was considered distinct from standard of review

3.3. The new approach: Baker v. Canada

3.3.1. Rolled discretion into regular Standard of Review analysis

3.3.2. application in Baker Subjective grant of discretion: "Minister is satisfied" Reasonableness standard applied to Minister's discretion using Pushpanathan Unreasonable decision: should have considered the best interests of the child with more weight

3.3.3. Can you reweigh factors when applying S of R to discretionary decisions? Baker: Suggests yes and Does so. No! Suresh v. Canada (Minister of Citizenship and Immigration)

3.4. Recent Law: Public Mobile Inc. v. A.G. (Canada) [Globalive]

3.4.1. Statute: Telecommunications Act s. 16(3): definition of a Canadian-owned and controlled corporation s.7: objectives of the Telecommunications Act

3.4.2. Facts Globalive participated in an auction of radio-frequency spectrum, but still needed licence from CRTC CRTC decides that Globalive will not be granted a licence according to the Telecommunications Act s. 16(3)(c) The Governor in Council varies the CRTC decision Competitor, Public Moblie, challenges the Governor in Council's decision at the Federal Court

3.4.3. Decision Public mobile has standing to challenge decision Governor in Council's legal findings reviewed on a standard of CORRECTNESS. Decision Incorrect and quashed.

3.5. The ATA and Discretion

3.5.1. defines a discretionary decision that is patently unreasonable s. 58(3) s. 59(4) Very similar to old abuse of discretion doctrine

4. .... and the Charter

4.1. The Orthodox Approach:

4.1.1. TEST (1) Determine whether impugned decision infringes a Charter right; If Charter right infringed, the consider (2) whether the infringement can be saved under s.1; If Charter not infringed, then consider (2) SOR analysis

4.1.2. Why Orthodox Approach? Redundancy Ultra Vires Sophisticated Structure of s.1 Constitutional aspect

4.2. The Mixed Approach

4.2.1. TEST: (1) Threshold-type Q: Is the Decision legal in accordance with the principles of administrative law? Consider: (2) Charter Analysis with focus on statute (admin body creating statute):

4.2.2. Why Mixed Approach: Lack of Standing? Trinity Western: Religious based corporation doesn't have right to FOR Chamberlain: None of the applicants were same sex parents of children

4.3. Administrative Law Approach

4.3.1. TEST: (1) Presumption that statutes are constitutional; (2) Determine whether a balance of deference exists

4.3.2. Why Administrative Law Approach? Deference Redundancy Baker - Admin law analysis incorporates arguments respecting Charter Respects Division of Powers Charter has no application in administrative tribunals decisions "Regle de droit" (Multani Deschamps)

4.3.3. Criticisms: Gap btwn rsbl under SOR and rsbl under Charter goes untouched Doing indirectly what can't do directly

4.4. Is a s. 24(1) Remedy available to the Tribunal? CONWAY TEST

4.4.1. General Jurisdiction to Grant Charter Remedies? Can they Decide Q of law? Charter jurisdiction not excluded by statute?

4.4.2. Can Tribunal Grant Specific Remedy? Look at legislative intent

4.4.3. CONWAY Case

4.5. Can Tribunal Look at Constitutionality of its own statute Through Charter Lens? MARTIN TEST

4.5.1. Q of law juris = Presumption of Charter Jurisdiciton

4.5.2. Presumption Rebutted if intent to exclude Charter shown

4.5.3. MUST apply Charter if have Jurisdiction

4.6. Guiding Principle (Sleight)

4.7. Accepted Goals of the Analysis:

4.7.1. Avoidance of bifurcated proceedings (Mills, Martin)

4.7.2. Early and accessible adjudication of Charter applications (Mills, Martin)

4.7.3. The legislature cannot avoid Charter scrutiny through delegation (sleight, Multani)

4.8. The ATA

4.8.1. MOST tribunals have no ability to consider the Charter Policy: Courts are more expert than tribunals on Charter Questions If Charter Questions become an issue, litigants might have to hire expensive lawyers they wouldn’t otherwise have to Non-binding nature of tribunal Charter decisions would raise the cost of litigation.