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Standard of Review by Mind Map: Standard of Review
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Standard of Review

.... and the Charter

The Orthodox Approach:

SOR analysis will continue to be relevant when considering Qs of jurisdiction, fact and application of law to facts.

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

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

The Mixed Approach

TEST:, (1) Threshold-type Q: Is the Decision legal in accordance with the principles of administrative law?, Consider:, Is the decision Ultra Vires?, Is it based on an unreasonable interpretation of statutory provision or exercise of discretion?, Is SOR adequate to deal with the problem?, (2) Charter Analysis with focus on statute (admin body creating statute):

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

Administrative Law Approach

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

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)

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

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

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

Can Tribunal Grant Specific Remedy?, Look at legislative intent


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

Q of law juris = Presumption of Charter Jurisdiciton

Presumption Rebutted if intent to exclude Charter shown

MUST apply Charter if have Jurisdiction

Guiding Principle (Sleight)

Admin agencies must act consistent with the Charter "and its values" when exercising statutory functions

Accepted Goals of the Analysis:

Avoidance of bifurcated proceedings (Mills, Martin)

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

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


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.

Administrative Tribunals Act

Reasons for Reform

Reasons for Reform: Improve quality & timeliness of decisions More opportunity & earlier chances for informal review & reconsideration. Move away from crt like process to ADR. Greater certainty and finality. Restructure tribunals w view to workloads. Expertise.


Overarching statute that: (1) harmonizes procedural fairness rules generally in BC and; (2) places limits on JR opportunities.  Applies to provincially created tribunals in BC BUT not every section applies to every tribunalà“menu” type statute.

Central themes

ATA is built around 5 notions: Independent process Institutional design & powers of tribunals. Dispute resolution. Charter & Human Rights Jurisdiction SoR (Post-Dunsmuir--> patent unreasonableness alive in BC --Khosa)

Important Provisions

Can a tribunal consider Charter/Constitutional Issues?

Limits on Juridical Review

SOR w/ Privative Clauses

Defines Patent Unreasonableness for discretionary decisions

Canada v. Khosa


Majority Analysis

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


How to determine the Standard of Review

The Watershed (CUPE)

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

Sequels to CUPE, Bibeault, Beyond the Privative Clause, Reasonableness Simpliciter, Pezim, Southam

Result: SOR Spectrum

Analytical Structure (Pushpanathan)

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

Pre-Dunsmuir Caselaw

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]

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]

New Test (Dunsmuir)


The new standard of review analysis


....and discretionary decisions

What is discretion?


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

obj. v. subj. grants of discretion

History: abuse of discretion doctrine

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

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

Discretion was considered distinct from standard of review

The new approach: Baker v. Canada

Rolled discretion into regular Standard of Review analysis

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

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)

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

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

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

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

The ATA and Discretion

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