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
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
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
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
Q of law juris = Presumption of Charter Jurisdiciton
Presumption Rebutted if intent to exclude Charter shown
MUST apply Charter if have Jurisdiction
Admin agencies must act consistent with the Charter "and its values" when exercising statutory functions
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.
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.
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)
Can a tribunal consider Charter/Constitutional Issues?
Limits on Juridical Review
SOR w/ Privative Clauses
Defines Patent Unreasonableness for discretionary decisions
Minority Analysis, Overview, If no privative clause..., If there is a privative clause..., Because...., The ATA...
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
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
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]
The new standard of review analysis
grant of discretion will use language of "may" instead of mandatory language such as "shall"
obj. v. subj. grants of discretion
Roncarelli v. Duplessis  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
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)
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.
defines a discretionary decision that is patently unreasonable, s. 58(3), s. 59(4), Very similar to old abuse of discretion doctrine