Extracts: Sources and Limits of Administrative Justice | shannonsalter | January 26, 2015


This is the old version of the H2O platform and is now read-only. This means you can view content but cannot create content. You can access the new platform at https://opencasebook.org. Thank you.

Extracts: Sources and Limits of Administrative Justice

Subsection 82(11) of Canada Pension Plan, R.S.C. 1985, c. C-8:


“A Review Tribunal may confirm or vary a decision of the Minister made under section 81 or subsection 84(2) or under subsection 27.1(2) of the Old Age Security Act and may take any action in relation to any of those decisions that might have been taken by the Minister under that section or either of those subsections, and the Commissioner of Review Tribunals shall thereupon notify the Minister and the other parties to the appeal of the Review Tribunal’s decision and of the reasons for its decision.


Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560 at pages 568-569:


“We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice.”


Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722


The powers of any administrative tribunal must of course be stated in its enabling statute but they may also exist by necessary implication from the wording of the act, its structure and its purpose.  Although courts must refrain from unduly broadening the powers of such regulatory authorities through judicial law-making, they must also avoid sterilizing these powers through overly technical interpretations of enabling statutes.  I have found that, within the statutory scheme established by the Railway Act and the National Transportation Act, the power to make interim orders necessarily implies the power to revisit the period during which interim rates were in force….


Reference re Secession of Quebec, [1998] 2 S.C.R. 217:


(d)  Constitutionalism and the Rule of Law


70                               The principles of constitutionalism and the rule of law lie at the root of our system of government.  The rule of law, as observed in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142, is "a fundamental postulate of our constitutional structure".  As we noted in the Patriation Reference, supra, at pp. 805-6, "[t]he 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority".  At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs.  It provides a shield for individuals from arbitrary state action.


British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49:


65                              First, many of the requirements of the rule of law proposed by the appellants are simply broader versions of rights contained in the Charter.  For example, the appellants’ proposed fair trial requirement is essentially a broader version of s. 11(d) of the Charter, which provides that “[a]ny person charged with an offence has the right . . . to . . . a fair and public hearing.”  But the framers of the Charter enshrined that fair trial right only for those “charged with an offence”.  If the rule of law constitutionally required that all legislation provide for a fair trial, s. 11(d) and its relatively limited scope (not to mention its qualification by s. 1) would be largely irrelevant because everyone would have the unwritten, but constitutional, right to a “fair . . . hearing”.  (Though, as explained in para. 76, the Act provides for a fair trial in any event.)  Thus, the appellants’ conception of the unwritten constitutional principle of the rule of law would render many of our written constitutional rights redundant and, in doing so, undermine the delimitation of those rights chosen by our constitutional framers.... 


66                              Second, the appellants’ arguments overlook the fact that several constitutional principles other than the rule of law that have been recognized by this Court — most notably democracy and constitutionalism — very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and to the requirements, such as judicial independence, that flow by necessary implication from those terms).  Put differently, the appellants’ arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box.  See Bacon v. Saskatchewan Crop Insurance Corp. (1999), 180 Sask. R. 20 (C.A.), at para. 30; Elliot, at pp. 141-42; Hogg and Zwibel, at p. 718; and Newman, at p. 187.


67                              The rule of law is not an invitation to trivialize or supplant the Constitution’s written terms.  Nor is it a tool by which to avoid legislative initiatives of which one is not in favour.  On the contrary, it requires that courts give effect to the Constitution’s text, and apply, by whatever its terms, legislation that conforms to that text.


Section 255 of the Workers’ Compensation Act, [R.S.B.C. 1996] c. 492.


  1. Any decision or action of the chair or the appeal tribunal under this Part is final and conclusive and is not open to question or review in any court.


  2. Proceedings by or before the chair or appeal tribunal under this Part must not

(a) be restrained by injunction, prohibition or other process or proceeding in any court, or

(b) be removed by certiorari or otherwise into any court.


Re Residential Tenancies Act, [1981] 1 S.C.R. 714


27     Under s. 92(14) of the B.N.A. Act the provincial legislatures have the legislative power in relation to the administration of justice in the province. This is a wide power but subject to subtraction of ss. 96 to 100 in favour of the federal authority. Under s. 96 the Governor General has the sole power to appoint the judges of the Superior, District and County Courts in each province. Under s. 97 the judges who are to be appointed to the Superior, District and County Courts are to be selected from the respective bars of each province. Under s. 100 the Parliament of Canada is obliged to fix and provide for their salaries. Section 92(14) and ss. 96 to 100 represent one of the important compromises of the Fathers of Confederation. It is plain that what was sought to be achieved through this compromise, and the intended effect of s. 96, would be destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts. What was conceived as a strong constitutional base for national unity, through a unitary judicial system, would be gravely undermined. Section 96 has thus come to be regarded as limiting provincial competence to make appointments to a tribunal exercising s. 96 judicial powers and therefore as implicitly limiting provincial competence to endow a provincial tribunal with such powers.


Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220 :


22     It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review.


Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54:


[28]      Courts may not apply invalid laws, and the same obligation applies to every level and branch of government, including the administrative organs of the state.  Obviously, it cannot be the case that every government official has to consider and decide for herself the constitutional validity of every provision she is called upon to apply.  If, however, she is endowed with the power to consider questions of law relating to a provision, that power will normally extend to assessing the constitutional validity of that provision.  This is because the consistency of a provision with the Constitution is a question of law arising under that provision. It is, indeed, the most fundamental question of law one could conceive, as it will determine whether the enactment is in fact valid law, and thus whether it ought to be interpreted and applied as such or disregarded.


[29]      From this principle of constitutional supremacy also flows, as a practical corollary, the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts: see Douglas College, supra, at pp. 603-4.  In La Forest J.’s words, “there cannot be a Constitution for arbitrators and another for the courts” (Douglas College, supra, at p. 597).  This accessibility concern is particularly pressing given that many administrative tribunals have exclusive initial jurisdiction over disputes relating to their enabling legislation, so that forcing litigants to refer Charter issues to the courts would result in costly and time-consuming bifurcation of proceedings.  As McLachlin J. (as she then was) stated in her dissent in Cooper, supra, at para. 70:


The Charter is not some holy grail which only judicial initiates of the superior courts may touch.  The Charter belongs to the people.  All law and law‑makers that touch the people must conform to it.  Tribunals and commissions charged with deciding legal issues are no exception.  Many more citizens have their rights determined by these tribunals than by the courts.  If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals. 



Human Rights Code, [R.S.B.C. 1996] c. 210:


Code prevails


4.         If there is a conflict between this Code and any other enactment, this Code prevails.


Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14: 


[39]      In its present form, the Code can be interpreted and applied by a myriad of administrative actors.  Nothing in the current legislative scheme suggests that the OHRC is the guardian or the gatekeeper for human rights law in Ontario.  Thus in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, 2003 SCC 42, this Court held that a labour arbitrator was able to apply the Code, as its provisions are implicit in collective agreements.  And in Charette, I noted how allowing many administrative actors to apply human rights legislation fosters a general culture of respect for human rights in the administrative system:  see para. 28; see also Parry Sound, at para. 52.  These pronouncements are consistent with the legislature’s removal of the exclusive jurisdiction clause for the OHRC, as well as its current policy of permitting the OHRC to decline jurisdiction where an issue would be best adjudicated pursuant to another Act:  see s. 34(1)(a) of the Code.  It is hardly appropriate for this Court to now argue with this legislative policy shift towards concurrent jurisdiction, and seek to restore exclusive jurisdiction for the OHRC.



Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27:


21                              Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely.  He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.  At p. 87 he states:


Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.


Federal Courts Act, R.S.C. 1985, c. F-7: 




Grounds of review 


(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal


(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or 

                        (f) acted in any other way that was contrary to law.


Air Canada v. Toronto Port Authority, 2011 FCA 347:


[56]           The tricky question, of course, is what is public and what is private. In Dunsmuir and in Mavi, the Supreme Court did not provide a comprehensive answer to that question.


[57]           Perhaps there can be no comprehensive answer. In law, there are certain concepts that, by their elusive nature, cannot be reduced to clear definition.  For example, in the law of negligence, when exactly does a party fall below the standard of care? We cannot answer that in a short sentence or two. Instead, the answer emerges from careful study of the factors discussed in many cases decided on their own facts. In my view, determining whether a matter is public or private for the purposes of judicial review must be approached in the same way.


[58]           Further, it may be unwise to define the public-private distinction with precision. The “exact limits” of judicial review have “varied from time to time” to “meet changing conditions.” The boundaries of judicial review, in large part set by the public-private distinction, have “never been and ought not to be specifically defined.” See the comments of Justice Dickson (as he then was) in Martineau, supra at page 617, citing Lord Parker L.J. in Lain, supra at page 882.


[60]           In determining the public-private issue, all of the circumstances must be weighed: Cairns v. Farm Credit Corp., [1992] 2 F.C. 115 (T.D.); Jackson v. Canada (Attorney General) (1997), 141 F.T.R. 1 (T.D.). There are a number of relevant factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law. Whether or not any one factor or a combination of particular factors tips the balance and makes a matter “public” depends on the facts of the case and the overall impression registered upon the Court. Some of the relevant factors disclosed by the cases are as follows:


●         The character of the matter for which review is sought. Is it a private, commercial matter, or is it of broader import to members of the public? See DRL v. Halifax Port Authority, supra; Peace Hills Trust Co. v. Moccasin, 2005 FC 1364 at paragraph 61, 281 F.T.R. 201 (T.D.) (“[a]dministrative law principles should not be applied to the resolution of what is, essentially, a matter of private commercial law…”).


●         The nature of the decision-maker and its responsibilities. Is the decision-maker public in nature, such as a Crown agent or a statutorily-recognized administrative body, and charged with public responsibilities? Is the matter under review closely related to those responsibilities?


●         The extent to which a decision is founded in and shaped by law as opposed to private discretion. If the particular decision is authorized by or emanates directly from a public source of law such as statute, regulation or order, a court will be more willing to find that the matter is public: Mavi, supra; Scheerer v. Waldbillig, (2006), 208 O.A.C. 29, 265 D.L.R. (4th) 749 (Div. Ct.); Aeric, Inc. v. Canada Post Corp., [1985] 1 F.C. 127 (T.D.). This is all the more the case if that public source of law supplies the criteria upon which the decision is made: Scheerer v. Waldbillig, supra at paragraph 19; R. v. Hampshire Farmer’s Markets Ltd., [2004] 1 W.L.R. 233 at page 240 (C.A.), cited with approval in MacDonald v. Anishinabek Police Service (2006), 83 O.R. (3d) 132 (Div. Ct.). Matters based on a power to act that is founded upon something other than legislation, such as general contract law or business considerations, are more likely to be viewed as outside of the ambit of judicial review: Irving Shipbuilding Inc, supra; Devil’s Gap Cottager (1982) Ltd. v. Rat Portage Band No. 38B, 2008 FC 812 at paragraphs 45-46, [2009] 2 F.C.R. 276.


●         The body’s relationship to other statutory schemes or other parts of government. If the body is woven into the network of government and is exercising a power as part of that network, its actions are more likely to be seen as a public matter: Onuschuk v. Canadian Society of Immigration, 2009 FC 1135 at paragraph 23, 357 F.T.R. 22; Certified General Accountants Association of Canada v. Canadian Public Accountability Board, (2008), 233 O.A.C. 129 (Div. Ct.); R. v. Panel on Take-overs and Mergers; Ex Parte Datafin plc., [1987] Q.B. 815 (C.A.); Volker Stevin N.W.T. (’92) Ltd. v. Northwest Territories (Commissioner), [1994] N.W.T.R. 97, 22 Admin. L.R. (2d) 251 (C.A.); R. v. Disciplinary Committee of the Jockey Club, ex parte Aga Khan, [1993] 2 All E.R. 853 at page 874 (C.A.); R. v. Hampshire Farmer’s Markets Ltd., supra at page 240 (C.A.). Mere mention in a statute, without more, may not be enough: Ripley v. Pommier, (1990), 99 N.S.R. (2d) 338, [1990] N.S.J. No. 295 (S.C.).


●         The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity. For example, private persons retained by government to conduct an investigation into whether a public official misconducted himself may be regarded as exercising an authority that is public in nature: Masters v. Ontario, (1993), 16 O.R. (3d) 439, [1993] O.J. No. 3091 (Div. Ct.). A requirement that policies, by-laws or other matters be approved or reviewed by government may be relevant: Aeric, supra; Canadian Centre for Ethics in Sport v. Russell, [2007] O.J. No. 2234 (S.C.J.)


●         The suitability of public law remedies. If the nature of the matter is such that public law remedies would be useful, courts are more inclined to regard it as public in nature: Dunsmuir, supra; Irving Shipbuilding, supra at paragraphs 51-54.


●         The existence of compulsory power. The existence of compulsory power over the public at large or over a defined group, such as a profession, may be an indicator that the decision is public in nature. This is to be contrasted with situations where parties consensually submit to jurisdiction. See Chyz v. Appraisal Institute of Canada (1984), 36 Sask. R. 266 (Q.B.); Volker Stevin, supra; Datafin, supra.


●         An “exceptional” category of cases where the conduct has attained a serious public dimension. Where a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable: Aga Khan, supra at pages 867 and 873; see also Paul Craig, “Public Law and Control Over Private Power” in Michael Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997) 196. This may include cases where the existence of fraud, bribery, corruption or a human rights violation transforms the matter from one of private significance to one of great public moment: Irving Shipbuilding, supra at paragraphs 61-62.




Text Information

May 08, 2015

Author Stats


Adjunct Professor

University of British Columbia Faculty of Law

Leitura Garamond Futura Verdana Proxima Nova Dagny Web
small medium large extra-large