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NCA Exam Foundations of Canadian Law Case List
NCA Exam Foundations of Canadian Law Case List
NCA Exam Foundations of Canadian Law Case List
Natural Law. Dworkin. Aspirational, only those laws that adhere to certain moral truths (of
universal/immutable nature) are laws. Drummond Wren. Mackay J, ‘proceeding from the general
to the particular” common law of public policy Re Drummond Wren 1945. "...It appears to me to
be a moral duty, at least, to lend aid to all forces of cohesion, and similarly to repel all fissiparous
tendencies which would imperil national unity...”
Critical Legal Studies rejects any kind of “natural legal order” discoverable by objective means,
main focuses on law far from symbolizing justice, just institutionalizing and legitimizing authority
and power of a particular social class (rich). Rule of law is indeterminate, full of subjective
interpretation and large degree of incoherency. CLR arg function of western legal systems not to
promote justice reproduce privilege and power over oppressed. CLS adherents reject that there is any kind of
“natural legal order” discoverable by objective means
CLS is a direct descendent of Legal Realism, an approach that rose to prominence in the 1920s
and lasted until the 1940s.
Legal Realism attacked two fundamental axioms of the traditional, formalist understanding of
the common law:
a) that common law legal rules were neutral and objective, and
b) that the rules themselves could be determined with sufficient certainty.
Realists maintained that all legal rules were indeterminate in the sense that any articulation of
a rule was subject to multiple interpretations…. the result would reflect the unstated public
policy preferences of the judge.
R. S(RD) 1997. Black judge, to Sct. Trial J mentioned systemic bias of police against black (m)
youths, Historical discrimination against visible minorities and women abused by men, not untrue.
No ‘reasonable apprehension of bias” by black judge against white policeman. 2 judges, we find
them to reflect an entirely appropriate recognition of facts in evidence and context.
Facts
A white police officer arrested a black 15yearold who had allegedly interfered with the
arrest of another youth. The accused was charged with three offences dealing with
unlawfully assaulting and unlawfully resisting a police officer.
The police officer and the accused were the only witnesses and their accounts of the
relevant events differed widely.
The Youth Court judge weighed the evidence and determined that the accused should be
acquitted.
Judge made statement saying that Police have been known to mislead the courts. Crown said
this raised reasonable apprehension of bias. Crown appealed to Appeal Court, new trial
ordered b/c agreed reasonable apprehension bias.
Held (Lamer C.J. and Sopinka and Major JJ. dissenting): The appeal should be allowed.
Heldthe crown challenge on reasonable apprehension of bias and filled appeal appeal
allowed. A new trial was ordered it was held that the trial judge's decision was not based on
factors which were not in evidence. All judges must be impartial. Police cannot always be
favored this would lead to bias. Therefore, they restored the trial court decision and restored
the acquittal.
Another judge also restores the acquittal but with different reasons. He outlines that judges
can never been fully impartial and objective, but they must strive for this goal. A judges own
stereotype can impact a judgment, but as long as it does not prevent a fair and just
determination of the case via facts, it is fine.
Dissent pg 33: we shouldn’t look at discrimination, just facts and evidence.
Law and Economics. Bank of America Canada v Mutual Trust Co. : time value of money, Simple
interest rate v compound interest. Value of money deceases with time. Opportunity cost; risk and
inflation cause depreciation of money over time. Restitution damages when efficient breach of
contract leaves $ in Def hands after compensation P.loss.
HART-DWORKIN DEBATE: (Shapiro) the relation between legality and morality. Hart – Judicial
Discretion determined by social practice, never moral issues; Dworkin- legality determined by
moral facts as well as social facts. D and H looking for purpose behind legal system. H
(positivists) must look to social facts, while D (natural law) look to morals, S arg that by not
valuing the ideology of the designers of the legal system, they are unsettling the law. Empirical
social facts v moral and political philosophy. Q how to change system designed with morally
corrupt goals (like slavery). Positivists must concede that proper methodology is a function of
systemic purpose which is a matter of social fact. H Judicial discretion is a necessary byproduct of
inherent indeterminacy of social guidance. “open texture” of language. H judges must sometimes
exercise strong discretion b/c he takes law to consist in those standards socially designated as
authoritative. D. legal interpretation is “constructive” – process of “imposing purpose on an
object/practice to make it the best possible example of form/genre”. Determination of legal
“grounds” as a process of Constructive Interpretation, D accounts for theoretical interpretations of
law.
A. READING
Constitution Act 1867, s. 91(24), 30 & 31. c.3
Constitution Act 1982, s. 35.
Indian Act Section 88 makes AB subject to provincial laws of general application.
SUMMARY OF TRC: Calls to Action: revise info kit for newcomers, Oath of Citizenship. Role of
recognizing force of Indigenous legal orders = tool for self-determination. Call to Action 92:
UNDRIP with PFIC. Art 3 right to self-determination. TRC, though, product of settlement of class
action lawsuits on residential schools, but provisions in Indian Act prevent enforcement of bank
security on most Indian reserves,:- no mortgages, no land planning autonomy. Still allowed by Ct
to infringe on Aboriginal rights if it can demonstrate that it is in the broader public interest
(Delgamuukw) to do so (development of agriculture, forestry, etc. p 350) Key opportunities for
action p. 351. 4 principles to move forward p 352. including “sharing benefits fairly” Sustainable
reconciliation on the land involves realizing the economic potential of Indigenous comities in a
fair, just and equitable manner that respects their right to serlf-determination.””.353.
Reconciliation must become framework for resolving conflicts and building constructive
partnerships.
Current Status of Bill c-262 - on Second Reading in Senate (two sittings, last one 11/29/2018)
IMPLEMENTING UNDRIP IN CANADA: CHALLENGES WITH BILL C-262 (Isaac and Hoekstra),
“unworkable” repeats sophisticated legal regimes for protecting AB and treaty rights. (Peel River
Watershed 2017) constraint on Crown acts. Veto creates overlap of authority unintended and
incompatible with “principles of federalism”..human rights description “may not be helpful”,
states IN consent requested whether or not a traditional right is impacted. Pretends this may inhibit
IN peoples from advancing their own economic interests on their traditional territories. Legal
regime “consistent with principles of a free and democratic society”. Says C-262 will introduce
“substantial uncertainty” in the pursuit of “opaque objectives”. Needs predictability. Move
forward with “certainty” Q of application to non-s.35 bearing IN people (Daniels v Canada)
Metis../”Objectives” undefined. Deliberately general document into sophisticated Canadian IN
rights regime. S 5 of s-262 develops a national action plan.. annual reports for 20 years.
MEMO TO CANADA: INDIGENOUS PEOPLE ARE NOT YOUR INCOMPETENT CHILDREN (Elliot)
Wants Canada to say that Band Councils are not required for our people to have discussions with
their leaders. Nation-to-nation relationship.To acknowledge the IN nations of this land are
soverign nations, respect them as sovereign nations and consul and negotiate as such. Anything
less is politically correct posturing. Right to Consent, Right to say no, even if that “no” interferes
with Canadian politicians and power companies plans. Assurances C wont pull community
funding if we say no. wont punish us with third party management as it continues to underfund
essential services, will gove opportunity to develop our economies and communities so they don’t
need to rely on Canada for anything. View IN as equal partners, not incompetent children.
B. ABORIGINAL RIGHTS
DUTY TO CONSULT: f the Crown contemplates a decision that might adversely affect the
exercise of an aboriginal right – whether recognized or with the potential to be (through
negotiations, litigation, etc.) – the duty to consult kicks in. (Haida Nation, Rio Tinto (2010
SCC))
a. The Crown will be deemed to have knowledge or constructive knowledge of a
right if it is a treaty right or when the government is aware of an Aboriginal group’s
traditional occupation of an area. (Mikisew Cree (2005 SCC))
b. The duty to consult isn’t engaged unless the decision has a new impact on rights.
“The claimant must show a causal relationship between the proposed government
conduct or decision and a potential for adverse impacts on pending Aboriginal
claims or rights. Past wrongs, speculative impacts, and adverse effects on a First
Nation’s future negotiating position will not suffice.” (Rio Tinto)
c. Legislative exemption doesn’t appear to apply to decisions affecting aboriginal
rights. The duty to consult must be discharged after a bill is tabled in Parliament.
But that consultation must happen before legislative process begins that would then
shield the decision under the Federal Courts Act. (Mikisew Cree First Nation v.
Canada (Minister of Aboriginal Affairs) 2014 FC 1244)
i. Who does this duty rest on? Ministers responsible? MPs? Speaker? How?
Hearings? In the UK it’s a convention that parliament is open and people
can participate and be given notice.
2. Content of duty to consult is variable as with PF. The scope of the duty to consult is
proportionate to a preliminary assessment of the strength of the case supporting the existence
of the right or title, and to the seriousness of the potentially adverse effect upon the right or
title claimed. (Haida Nation, Taku River) Ultimate questions is what will maintain honour
of the Crown?
a. The government will not necessarily be required to develop special additional
consultation methods outside the legislation. (Taku River)
b. Similar to lower end of PF – right to notice and to be heard in some way.
3. Accommodation – there are two ways to understand when accommodation may be required:
(1) You can understand accommodation as a freestanding duty based the outcome of balancing
the seriousness of infringement and prospects of realization of a right. (This approach taken in
Taku River) (2) You’ll only have to accommodate when you’ve gone through consultation
process. (This approach was also suggested in Taku River)
4. Content of duty to accommodate is to seek compromise through good faith efforts to
understand concerns and address them, it does not have to result in agreement, but it can
include a veto for Aboriginal groups in rare cases of proven rights (EX: consent was required
in Delgamuukw in relation to the regulation of harvesting activities on Aboriginal title land).
Standards of Review:
1. Questions of law that have to be assessed on the basis of correctness: what is the seriousness
of the impact and likelihood the right will be recognized? (Haida Nation)
2. Reasonableness review when you are considering what consultation is appropriate given the
balancing of the seriousness of the impact and strength of the right. (Haida Nation)
3. Accommodation… (1) If the duty to accommodate stems from a balancing of seriousness and
prospects of realization of a right, then whether the duty was discharged could be reviewed on
a standard of correctness. (2) If accommodation is understood as the outcome of the
consultation process, then whether the duty was discharged would have to be assessed as
question of mixed fact-and-law on a standard of reasonableness.
Remedies:
1. If the Crown fails to discharge its duty to consult, various remedies are available including
injunctive relief, damages, or an order that consultation or accommodation be carried out. (Rio
Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para. 37)
Chippewas of the Thames First Nations v Enbridge Pipelines, 2017. Confirms the ability of
governments to rely on regulatory processes to fulfill the Crown’s duty to consult with Aboriginal
groups, including in cases where the Crown itself is not involved in the process.
The Duty to Consult. Following a number of its earlier decisions, the Court decided that an
independent regulatory body with the statutorily delegated executive responsibility to make final
decisions on project applications (and specifically, the NEB) is acting on the Crown’s behalf. NEB
decisions therefore amount to Crown action that can trigger the Crown’s constitutional duty to
consult. The Crown can, in some circumstances, also rely on a regulatory body (or its process) to
partly or completely fulfill its duty to consult - but only if:
Power. That body has the statutory power in its enabling legislation necessary to do what
the duty to consult requires in the particular circumstances.
“Notice”. The Crown makes clear to affected Indigenous groups, in a timely fashion, that
it will be relying on the regulatory body’s process to fulfill its duty to consult affected
Indigenous groups.
The Supreme Court decided the NEB does have the procedural powers necessary to engage in
consultation and the remedial powers to, where necessary, accommodate affected Aboriginal
and treaty rights. Consequently the Crown could rely on it to fulfill its duty to consult. But the
Court reached different conclusions about whether the NEB met that duty in each case: in
Chippewas of the Thames, the Court decided the NEB’s consultation was “manifestly
adequate” in the circumstances and upheld the NEB’s approval; in Clyde River, the Supreme
Court quashed the NEB’s approval because of its “significantly flawed” process in the
circumstances. The key differences between the cases: the scope of the projects, the nature of
the rights involved and the process the NEB undertook.
C. ABORIGINAL TITLE
Delgamuukw v. British Columbia [1997] : Inherent Limit: Lands Held Pursuant to Aboriginal
Title Cannot Be Used in a Manner that Is Irreconcilable with the Nature of the Attachment to the
Land Which Forms the Basis of the Group’s Claim to Aboriginal Title
The content of aboriginal title contains an inherent limit that lands held pursuant to
title cannot be used in a manner that is irreconcilable with the nature of the
claimants’ attachment to those lands.
re source of aboriginal title - aboriginal title arises from the prior occupation of
Canada by aboriginal peoples.
The relevance of the continuity of the relationship of an aboriginal community with
its land here is that it applies not only to the past, but to the future as well. That
relationship should not be prevented from continuing into the future.
As a result, uses of the lands that would threaten that future relationship are, by
their very nature, excluded from the content of aboriginal title.
Occupancy is determined by reference to the activities that have taken place on the
land and the uses to which the land has been put by the particular group
if occupation is established with reference to the use of the land as a hunting
ground, then the group that successfully claims aboriginal title to that land may not
use it in such a fashion as to destroy its value for such a use (e.g., by strip mining
it).
It is for this reason also that lands held by virtue of aboriginal title may not be
alienated.
It is also, again only in part, a function of a general policy “to ensure that Indians
are not dispossessed of their entitlements”
Brown v Canada (AG) 2017. This ruling is a major victory for Sixties Scoop survivors in Ontario
and across Canada who continue to seek justice and restitution for the great harm that was done by
destructive provincial child welfare policies. The ruling comes after 8 years of protracted legal
proceedings which saw Canada try to prevent the hearing of the class action on several occasions
through various motions, appeals and 11th hour settlement offers. The class action may now
proceed to the next phase where the damages Canada is liable for as a result of the breach will be
determined.
This decision provides a pathway for justice and restitution for Sixties Scoop survivors in Ontario
and across Canada. While Canada has indicated its intention not to appeal the decision, it is
possible that it may still choose to take a narrow reading of the decision in order to limit its
implications to the class of Sixties Scoop survivors in Ontario affected by the 1965 Agreement.
However, in this era of Truth and Reconciliation, Justice Belobaba’s decision provides greater
impetus for Canada to answer to the numerous Sixties Scoop class actions in other jurisdictions
and provide fair redress to thousands of others Sixties Scoop survivors still seeking justice and
restitution.
Finally, if further litigation is required it may be that Canada will be held liable for breach of
fiduciary duty if the evidence in another case meets the test. The Court had earlier held that
‘culture and identity’ is a specific cognizable interest that may give rise to a fiduciary duty.
On the first question, Justice Belobaba found that Canada had owed a common law duty of care
but not a fiduciary duty. On the second question, Justice Belobaba found that Canada did breach
its common law duty of care.
G. ABORIGINAL TREATIES
-Much of our current legal regime depends on the common law and a series of British imperial
statutes, which were received into Canada upon its acquisition as territorial possession of the
British Crown -Quebec is different due to its French history. It remains a civil law jurisdiction
which is influenced by common law.-Aboriginal interests and concepts have emerged as a source
of law in Canada.
1. Law and Aboriginal Peoples-Aboriginal peoples = Indians, Inuits, and Metis
-Some early Canadian cases recognized that the assumption of control by the British Crown during
the colonial period did not automatically erase aboriginal legal systems:
Connolly v Woolrich [1867] where validity of an 1803 marriage under Indian custom
between an European and Indian was upheld a the assertion of English sovereignty it did not
annul “the territorial rights, political organization, such as it was, or the laws and usages of
Indian tribes”)-However, this approach did not prevail is subsequent Canadian case law
-For years, there has been little or no place in our legal system for the original inhabitants.
-In Canada, by virtue of s.91(24) of Constitution Act 1867, the federal Parliament has power over
“Indians” and “lands reserved for Indians”.
-In 1982, aboriginal rights were constitutionally entrenched in s.35 of Constitution Act 1982 which
protects “existing aboriginal and treaty rights of the aboriginal peoples of Canada”
-A significant amount of jurisprudence in Canada expanding on aboriginal rights since 1982 has
contributed to this debate.
-Although many economic, social, and health indicators continue to show that Canada’s aboriginal
peoples are much worse off than other Canadians, and the paternalistic nature of the Indian Act
continues to control many aspects of their lives, the constitutionalization of aboriginal rights has
restored at least some recognition of the aboriginal interests in Canadian law.
Reception of European Law
Rules of Reception: Cooper v Stuart Privy Council:
Bijuralism
Common Law Method: Precedent and Equity
>Statutory Law
SOME THOUGHTS ON BIJURALISM IN CANADA AND THE WORLD : Gervais & Seguin-
TAX - Grimard v Canada 2009: Employee v Independent Contractor. Used common law as
advisory for Quebec Civil Law. Parliament decided to take a stance two years later. By
enacting section 8.1 of the Interpretation Act, R.S.C., 1985, c. I-21, using the Federal Law-Civil
Law Harmonization Act. No. 1, S.C. 2001, c. 4, it acknowledged the principle of complementarity
of Quebec civil law to federal law when the conditions in section 8.1 are met. In so doing, it
allowed for differences in the treatment of Canadian litigants under federal legislation.
(1) the length of time that has passed since the earlier decision;
(2) the breadth of the new evidence that was not available to the court in the earlier
decision;
(3) evidence that the social, political, or economic assumptions underlying the earlier
decision are no longer valid;
(4) evidence of a shift internationally in approaching the problem;
(5) any difference in adjudicative facts between the two cases; and
(6) and difference in the perspective of the claimants in the two cases
STARE DECISIS AND THE RULE OF LAW: A LAYERED APPROACH : (Waldron) principle of
constancy, principle of generality, principle of institutional responsibility, and principle of fidelity
to law. We have to give REASONS for decisions (Cadi metaphor just signalling not saying why
to execute the bread merchant).
Rule of law generates a distinctive perspective on Stare Decisis; 2) Best to understand impact
of rule of law on Stare Decisis in layers.
1) One principle, the principle of constancy, counsels against lightly overturning such
precedents as we have.
2) Another principle, the principle of generality, requires all judges to base their decisions on
general norms and not just leave them as freestanding particulars.
3) Another principle, the principle of institutional responsibility, requires subsequent judges
not to give the lie to the use by precedent judges of certain general norms to make their
decisions.
4) And, finally, a fundamental principle of fidelity to law requires the precedent judge to
approach her decision as far as she can by trying to figure out the implicit bearing of such
existing law as there is on the case in front of her.
She figures out the bearing of the law, she formulates it into a general norm, a subsequent judge
takes note of the general norm that she has used, he plays his part in establishing the norm as
something whose generality is more than merely notional, and judges try to maintain the
constancy and stability of the body of law that emerges from all this by not overturning precedents
lightly or too often.
After the Baker decision, there appears to be a trend towards treating all international law,
whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the
same manner – as relevant and persuasive, but not determinative (this comes implicitly from
the decision, not explicitly)
De Guzman v Canada 2005 International Human Rights instruments do not prevail over
conflicting (local) provisions. The direction that the IRPA “must be construed and applied in a
manner that complies with international human rights instruments to which Canada is a
signatory” does not give priority to them. Expanding role intnl common law has given in
interpretation of domestic law. “must be construed” = instructs courts to give more than
persuasive or contextual significance. Even non-binding Ct thought should be persuasive /
contextual, and binding ones, more than that. Ct considers provision in context of entire legislative
scheme. If regulation and is held to make IRPS non-compliant, Ct then has to determine whether
the relevant enabling section of the IRPA authorizes the Governor in Council to enact a regulation
which renders IRPA non compliant with a binding Intern HR instrument to which Canada is a
signatory. Only a clear legislative intention to the contrary will warrant a conclusion that
regulation making power could be lawfully exercised in this manner.
Role of Domestic Courts in Treaty Enforcement; (Gib van Ert). Executive Act.
Treaties lack direct effect w/I implementation legislation. Indirect effect of treaties (taking judicial
notice of state’s treaty obligations). Harmonizing by use of interpretative presumption of
conformity. HERE no legitimate expectation of specific procedural rights (Baker v Canada).
Vienna Convention of the Law of Treaties (VCLT) 1969. Canada party to VCLT.1980. First define
purpose of Convention / Treaty as a whole, then the purpose and place of the impugned
section/article within the scheme. Background (human right character) (Pushpanthan). Centrality
of VCLT to interpretation of Treaties by Canada. 2. Crown Forest v Canada 1995. (TAX) “a literal
or legalistic interpretation must be avoided when the basic object of the treaty might be defeated or
frustrated” (JD Gladden Estate v The Queen).. Start with Treaty’s express terms, viewed in their
context and light of treaty’s object and purpose, then resorting to supplementary means of
interpretation to confirm the textual meaning or to resolve ambiguity. Mugesera 2005 (customary
international law).
“In the face of certain unspeakable tragedies, the community of nations must provide a
unified response. Crimes against humanity fall within this category. The interpretation and
application of Canadian provisions regarding crimes against humanity must therefore
accord with international law. Our nation‘s deeply held commitment to individual human
dignity, freedom and fundamental rights requires nothing less.”
Presumption of conformity: 1) judicial policy; 2) values and principles of international law
(incl treaties) are said to form part of context in which statutes are enacted; 3) rebuttable.
Presumption of conformity applies to interpretation of powers granted by statute to
ADMINISTRATIVE decision-makers (R. v Hape). Unclear whether it applies to Charter issues
HAPE: “Wherever possible, [this court] has sought to ensure consistency between its
interpretation of the Charter, on the one hand, and Canada‘s international obligations and the
relevant principles of international law, on the other….
In interpreting the scope of application of the Charter, the courts should seek to ensure compliance
with Canada‘s binding obligations under international law where the express words are capable of
supporting such a construction.”
AND Health Services and Support-Facilities Subsector Bargaining Association v BC 2007.p.39 in
article.
>Constitutional Amendment
Singh v Canada (AG) 2000. Canada Evidence Act. From 1970 s 41(2) of Federal Evidence Act.
No transparency or accountability! Parliamentary Sovereignty. 20 year limit!
The appellants argued that section 39 was contrary to the common law and therefore implicitly
unconstitutional. Under current common law a judge can examine a document to see if the claim
that it was a Cabinet confidence was well-founded and if so, whether the public interest in its
disclosure would outweigh the public interest in its continuing secrecy. Legislation cannot,
however, be presumed unconstitutional simply because it alters the common law. The rationale for
such legislation is to give an absolute assurance to members of Cabinet and their advisors that the
classes of documents specified in section 39 will not even be subject to review by a judge for
confidentiality, and therefore the continued secrecy of the document is assured. The common law
was even more restrictive of disclosure until 1968 when, in Conway v. Rimmer, the House of
Lords held that the Court could examine documents which were the subject of a minister's claim
for immunity, although a majority were of the view that Cabinet documents as a class should not
be disclosed. At about this time, when the predecessor to section 39 was first enacted in Canada, it
applied the principles of Conway v. Rimmer to most documents, but provided absolute immunity
without examination by the Court for documents whose disclosure was claimed to be injurious to
international relations, national defence or security, or to federal-provincial relations or as
constituting a confidence of the Queen's Privy Council. In 1982 the absolute claim for non-
disclosure without examination by the Court was limited to confidences of the Queen's Privy
Council, which was defined for the first time and a time limit was placed on the continuation of
that status.
>Senate
>House of Commons
6. FUNCTIONS OF PARLIAMENT
>Summoning
>Prorogation
>Dissolution
>Key Actors
>Parliamentary Procedure and Law Making
JUDGING SEXUAL ASSAULT TRIALS: SYSTEMIC FAILURE IN THE CASE OF REGINA V BASSAM
AL-RAWI: (Craig)
1. Approaches to Interpretation
2. Modern Approach: Purposive interpretation is used when the courts use extraneous
materials from the pre-enactment phase of legislation, including early
drafts, Hansards, committee reports, and white papers. The purposive interpretation
involves a rejection of the exclusionary rule.”
3. Sullivan on the construction of statutes: Textual Meaning (grammatical and
ordinary sense of words): legislative intent (ID Leg goals and means devised to
achieve those goals); compliance with established legal norms. “Intention of Parl =
expressed;implied;presumed; declared intention. Primary source of legal norms–
common law.
4. The Original Case: Re Rizzo and Rizzo Shoes Ltd: Iacobucci, J “ 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. Ont Interpretation act, “Every Act shall be deemed to be
remedial ... and shall accordingly receive such fair, large and liberal construction
and interpretation as will best ensure the attainment of the object of the Act
according to its true intent, meaning and spirit.”
5. Dynamic and Static Approaches in the Supreme Ct Act Reference
6. Modern Approach in the midst of a Sea Change in meaning? Agraira v Canada
2013.
AGRAIRA “national security” defined by Minister. H&C (Humanitarian and compassionate) Def
says overly narrow. Standard of Review: “national interest” defined by Minister is use of
discretion, entitled to deference (Alberta Teachers) = reasonable. Justifiable, Transparent and
Intelligible reasons. Made clear the process followed. Decision falls within “range of possible
acceptable outcomes which are defensible in light of the facts and the law”. Ct reviewing
reasonableness of Minister’s exercise of discretion is not entitled to engage in a new weighing
process (Suresh). M. had reviewed and considered (all factors set out in application) which were
relevant to determining what was in “the national interest” in light of his reasonable interpretation
of that term. Here, statutory interpretation by Minister of “the national interest” .The Minister’s
decision was not unfair, nor was there a failure to meet A’s legitimate expectations or to discharge
the duty of procedural fairness owed to him.
Even though the court is careful to couch its analysis in the language of reasonableness because
this is a Minister interpreting his home statute, it doesn’t seem like deference was actually paid.
The Court looked at the interpretation in light of plain meaning, legislative history, purpose of the
Act, and context.
Schnarr v Blue Mountain Resorts 2018. The issues in the case clustered around the dual
application of both the Occupiers’ Liability Act (“OLA“) and the Consumer Protection Act(“CPA“) to
agreements between skiers and ski resorts.
As an occupier of premises, ski resorts are subject to the OLA. To encourage landowners to make
their property available for recreational activities, the OLA allows for landowners to limit their
liability through waivers of liability. However, as a consumer agreement, these ski resort contracts
are also governed by the CPA. The CPA requires services supplied under a consumer agreement to
be of a reasonably acceptable quality and deems waivers purporting to limit resultant liability to be
void.
The concurrent governance of the OLA and the CPA thrust two issues before the Court of Appeal:
(1) whether the two provisions could be interpreted to find a state of harmony; and (2) if not, what
effect should be ascribed to each provision?
The Court of Appeal answered the first question by finding a conflict between the two provisions.
It rejected the argument – accepted by the trial judge – that harmony could be established by
limiting the application of each provision to a specific cause-of-action. The trial judge had held
that the OLA provision allows waivers to limit liability in tort, while the CPA provision voids
waivers attempting to limit liability under contract.
The Court of Appeal denied this attempt at harmony by noting that each statute deals with a duty
of care, not a particular cause-of-action. The provisions of each statute therefore extend across the
same range of liability, encompassing both tort and contract. The OLAallows liability to be
waived, while the CPA does not. Conflict cannot be avoided.
To answer the second question, the Court of Appeal relied upon five principles of statutory
interpretation to hold that the OLA provision – enforcing waivers of liability – prevails. The
principles of statutory interpretation urge an approach that allows both statutes to maintain their
maximum application and effectiveness. The principles affecting the analysis with respect to
which statute should take precedence include:
(i) where a class of things is modified by general wording that expands the class, the
general wording is usually restricted to things of the same type as the listed items
(ejusdem generis);
(ii) when one or more things of a class are expressly mentioned, others of the same
class are excluded (expressio unius est exclusio alterius);
(iii) the exhaustiveness doctrine;
(iv) the provisions of a general statute must yield to those of a special one (generalia
specialibus non derogant); and
(v) the absurdity doctrine.
Canada (AG) v Bri-Chem Supply 2016. Tribunal found CBSA – abuse of process by failing to
apply Tribunal’s earlier decision in Frito-Law. FCA – deference, reasonableness test. Most
Favored Nation (MFN) to NAFTA. CBSA repeatedly conflated tariff treatment with tariff
classification. Tribunal has expertise and familiarity with Customs. He explained that the principle
of stare decisis operates in a nuanced way in the administrative setting: Stratas: panels are not
bound by previous decisions, but in the interests of finality, certainty and redictability, “later
panels should not depart from the decisions of earlier panels unless there is good reason” (at
para. 44). From the point of view of a front-line administrator, the decisions of those who sit in the
higher echelons of the administrative hierarchy should generally be respected, but can be
challenged in some circumstances. For if they were obliged to accept all decisions unthinkingly, “a
serious error might persist, possibly perpetually”
In my view, an administrator can act or take a position against an earlier tribunal decision only if it
is satisfied it is acting bona fide in accordance with the terms and purposes of its legislative
mandate and only if a particular threshold has been crossed. This threshold should be shaped by
two sets of clashing principles discussed above: the principles of certainty, predictability,
finality and tribunal pre-eminence on the one hand, and, on the other, ensuring that
potentially meritorious challenges of arguably wrong decisions can go forward.
What is the threshold? In an administrative regime like the one before us, the administrator must
be able to identify and articulate with good reasons one or more specific elements in the
tribunal’s earlier decision that, in the administrator’s bona fide and informed view, is likely
wrong. The flaw must have significance based on all of the circumstances known to the
administrator, including the probable impact of the flaw on future cases and the prejudice that will
be caused to the administrator’s mandate, the parties it regulates, or both.
This is something far removed from an administrator putting essentially the same facts, the same
law and the same arguments to a tribunal on the off-chance it might decide differently. Tribunal
proceedings are not a game of roulette where a player, having lost, can just hope for better luck
and try again.
When the administrator tries to persuade the tribunal that its earlier decision should no longer be
followed, the administrator must address at least the matters discussed above, offering submissions
that are not simply a rerun. They must go further than just a modest modifying or small
supplementing of the earlier submissions. The tribunal may then decide whether its earlier
decision remains good law after considering the evidence before it, the terms and purposes of the
legislation, and any other legal standards that properly bear on its decision (at paras. 50-53).
A PLEA FOR DOCTRINAL COHERENCE AND CONSISTENCY : (Stratas) In the seminal case of
Dunsmuir, the Supreme Court instructs us to determine the standard of review in every case,
deciding between correctness review and reasonableness review.12 This is consistent with the
importance of the standard of review, explained above. Dunsmuir gave us certain presumptive
rules to assist us in determining the standard of review. It also gave us factors to consider when
determining whether the presumptive rules are rebutted.
But Dunsmuir never explained when we should resort to the factors rather than the presumptions.
Early on, by and large, the Supreme Court used the presumptions and ignored the factors. Now,
suddenly, the Supreme Court has gone to the factors, without instructing us when we should do
this.19 So what should we follow? Presumptions or factors? Legislation sometimes signals that the
standard of review should be correctness—no deference at all to the administrative decision-maker. In
some cases, the Supreme Court reads these signals and properly carries out the legislator’s intent,
reviewing the decision for correctness. But sometimes not. In cases where the legislator has enacted a
full, untrammelled right of appeal from the administrative decision-maker to the reviewing court, the
legislator is instructing the reviewing court to interfere as it would in any appeal. This means, for
example, that errors by the administrative decision-maker in interpreting legislation would be legal
errors that the reviewing court can correct. Yet, that is not the case. Even where the legislator has
granted a full right of appeal, there is a presumption that administrative interpretations of legislation
are subject to deferential reasonableness review.
More questions about legislative supremacy arise in the area of the jurisdiction of administrative
decision-makers to consider “values” inherent in the Canadian Charter of Rights and Freedoms. The
Supreme Court has held that administrative decision-makers can import “Charter values” into any
matter before them, even where the legislative provision setting out the decision-maker’s powers is
limited and even where that provision seems inconsistent with the proffered Charter values. This
conflicts with earlier holdings based on the constitutional principle of legislative supremacy to the
effect that the Charter does not add to or affect the subject-matter jurisdiction of subordinate bodies.
Doré also conflicts with the seminal Charter case of Slaight Communications Inc. v. Davidson. In
Slaight, the Supreme Court said, in accordance with the principle of legislative supremacy, that in such
cases the administrative decision-maker must follow the legislative provision and a litigant must
constitutionally challenge the provision directly, either by asking the administrative decision-maker to
disregard the provision or, where permissible, through court proceedings for a declaration of invalidity.
In Doré, the Supreme Court, disparaging Slaight, suggests there is a growing departure from “Diceyan
principles,” in other words the principle that legislation governs the scope of authority of
administrative decision-makers.32 This is contrary to the constitutional principle of legislative
supremacy, is unsupported by authority, and conflicts with many authorities, including the
foundational case of Dunsmuir.
In Dunsmuir, the Supreme Court told us that reasonableness review is to take place on the basis of the
reasons “which could be offered” in support of a decision Later, in Newfoundland Nurses, the Supreme
Court in effect doubled down on this, saying that a reviewing court operating under the reasonableness
standard should strive to uphold the outcome reached by the administrative decision-maker and “seek
to supplement [its reasons] before [seeking] to subvert them.” SUGGESTIONS: Appellate standard
of review and administrative law review distinguished.
This animating concept is a tension between two constitutional principles, both of which are deeply
rooted in our history and our democratic and constitutional arrangements:
● On one side is the constitutional principle of legislative supremacy; 73 the legislature has vested
jurisdiction over a subject-matter to an administrative decision-maker, not the courts—sometimes with
a privative clause to boot;
● On the other side is the constitutional principle that the judiciary must sometimes enforce minimum
rule of law standards—things such as rational fact-finding, procedural fairness, and (at least)
acceptable and defensible interpretations and applications of law.
Margins of appreciation and what makes them vary: the intensity of review
In Dunsmuir, among other things, the Supreme Court aptly defined reasonableness as a range of
“acceptability and defensibility. The evidentiary record, legislation and case law bearing on the
problem, judicial understandings of the rule of law and constitutional standards help to inform
acceptability and defensibility.95 As well, certain indicia, sometimes called “badges of
unreasonableness,” can help to signal that an administrative law decision might not be acceptable or
defensible. Be attentive to the need to enhance access to justice and minimize the cost of litigation.
First, the more an administrative decision-maker explains its decision and invokes expertise and
specialized understandings in explicit reasons, the more the reviewing court is likely to find the
administrative decision-maker acted within its margin of appreciation. Administrative decision-
makers must provide a proper, transparent account of themselves and their decision-making to both the
parties and the public at large. Reviewing decisions by Ministers of the Crown. But some delegates
and many Ministers in their personal capacity simply decide without expressing an actual
interpretation of the relevant legislative provision, nor signalling any implicit or explicit adoption of an
interpretation made elsewhere, such as in a policy statement. In short, just as the intensity of review
of substantive decisions should vary according to the circumstances, procedural decisions should also
be subject to the same flexible approach. The approach discussed above—arriving at a sense of what
the margin of appreciation should be in a particular case—is apposite to procedural decisions as well.
Reviewing municipal by-laws, regulations and orders in council. Public bodies that enact municipal
by-laws under municipal statutes and regulations and orders in council under a statute often do so for
policy reasons based on their appreciation of the needs of the community. 120 Thus, in accordance with
the above analysis, they often enjoy a very broad margin of appreciation in their decision-making.
Related to this is the introduction of issues in the reviewing court that were not raised before the
administrative decision-maker. Quite consistent with the above discussion, the Supreme Court has
rightly placed stringent restrictions on the introduction of new issues. Personal predilection must never
be translated into enforceable law. There is a clear line between decrees founded upon the whims of
individual lawyers who happen to hold a judicial commission and the considered pronouncements of
judges relying upon doctrine that is objective and settled.
DUNSMUIR- PLUS CA CHANGE REDUX: (Sossin) Fidelity to democracy is represented in the idea
that where the legislature, representing the will of the majority, has authorized administrative
decision-makers to make important decisions based on their expertise and particular role in
advancing policy objectives of legislation, courts should defer to that legislative choice, and hence
to the decisions of these decision-makers. This deference is particularly important where the
legislature has expressly provided for it in a privative clause.
Fidelity to the rule of the law requires intervention by independent courts in the actions of the
executive branch to safeguard the boundaries of legitimate statutory authority for executive action
– for example, by ensuring decision-makers do not stray from the jurisdiction provided to them by
their empowering statutes, or otherwise engage in unreasonable exercises or abuses of that
statutory authority. In almost all cases, these twin pillars mandate that courts defer to some extent
when executive action is challenged, but can never defer completely. The logic of including the
impact on the party and the context of the decision-maker in the analytic framework for
procedural fairness is that the accountability of executive action under administrative law in a
constitutional democracy is best understood as holistic. New Zealand “Whether a reviewing Court
considers a decision reasonable and therefore lawful, or unreasonable and therefore unlawful and
invalid, depends on the nature of the decision: upon who made it; by what process; what the
decision involves (ie its subject matter and the level of policy content in it) and the importance of
the decision to those affected by it, in terms of its potential impact upon, or consequences for,
them.”
The final argument for focusing on who makes decisions and who is affected by them in the
standard of review analysis is transparency. While the Dunsmuir Standard of Review analysis
glosses over these lived realities of administrative decision-making, it is clear that in the realities
of judicial review, facts actually do matter. I should add that facts matter in ways that are not one-
dimensional. Vulnerability will sometimes militate for additional deference; while in other
contexts, this factor will justify intervention. My point is not that facts matter to the
determination of the standard of review in the same way in every case, but rather that, in every
case, facts matter. Without the ability to talk about how those facts might legitimately affect the
rationale for deference, courts will simply bend existing doctrines to fit the necessities and equities
of particular cases. In my view, recognizing the complexity of de facto considerations in a more
authentic de jure doctrinal analysis would be a good thing for the administration of justice and
ultimately enhance public confidence in the justice system.
DUNSMUIR:
Determining the appropriate standard: standard of review analysis,
(1) The presence or absence of a privative clause or right of appeal in the statute (note that these
are not determinative and other factors need to be considered); Existence of a privative or
preclusive clause gives rise to a strong indication of review pursuant to the reasonableness
standard. This is not determinative
(2) The purpose of the tribunal as determined by interpretation of enabling legislation;
(3) The nature of the question that is under review;
(4) The expertise of the tribunal
REASONABLNESS
1. Questions of fact, discretion and policy as well as questions where the legal issues cannot be
easily separated from the factual issues generally attract a standard of reasonableness
2. Reasonableness is concerned mostly with the existence of justification transparency and
intelligibility within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law
CORRECTNESS:
3. Constitutional questions regarding the division of powers between Parliament and the
provinces
4. determinations of true questions of jurisdiction or vires
5. the question at issue is one of general law "that is both of central importance to the legal
system as a whole and outside the adjudicator’s specialized area of expertise"
6. questions regarding the jurisdictional lines between two or more competing specialized
tribunals
Beyond those categories, context would determine when correctness would be applied, and
expertise would play a key role in those determinations.
DUTY TO CONSULT:
DEFERENCE AND LEGAL FRAMEWORKS NOT DESIGNED BY, FOR OR WITH US: (Metallic ) The
overall purpose of administrative law is to “assure the proper functioning of the machinery of
government” (Martineau v Matsqui Institution) and hold government actors accountable to the
“rule of law, … fundamental values of Canadian society, and the principles of the Charter”
(Baker). Consequently, administrative law holds out a lot of promise for assisting Indigenous
peoples in resolving disputes with public decision-makers. These legal frameworks almost
inevitably tend to be skewed to the interests and goals of settler Canadians over those of
Indigenous peoples. Although prepared to and that development of the Jumbo Valley ski resort
would drive out the Grizzly Bear Spirit from Qat’muk and infringe Ktunaxa Nation’s s. 2(a) rights,
Moldaver J.’s application of the Doré/Loyola justification test reveals that a fair balancing for
Indigenous people is difficult where legal frameworks vests all lands and control in the province.
The relevant statutory objectives, supplied by British Columbia’s Land Act and the Ministry of
Lands, Parks and Housing Act, were identified as the duties to administer and dispose of Crown
lands in the public interest, as well as to encourage outdoor recreation. There is nothing in these
laws calling on the Minister to consider or attempt to reconcile Indigenous groups’ title or
Aboriginal rights claims in performing his duties under these acts. Thus, when it came to
determining whether the Minister acted reasonably in approving the ski development on Jumbo
Mountain, it is not surprising that the judge agreed that accommodating the Ktunaxa’s religious
rights and protecting the mountain from development would undermine the Minister’s statutory
objectives of administering Crown land and disposing of it in the public interest. The federal
government announced the creation of a Working Group of Ministers on the Reviews of Laws and
Policies Related to Indigenous Peoples in February 2017. Similar processes need to happen within
the provincial and territorial governments. Until there is such reform, administrative law’s call for
deference to existing frameworks need to be questioned as to whether they unfairly advantage
settler-Canadian interests above those of Indigenous people. This should not necessarily preclude
a finding that a decision-maker may be owed deference; only that we should not accord blanket
deference by presuming the decision-maker is an expert simply because she is interpreting her
home statute or, on the other hand, because of the presence of discretion or policy decisions
existing in the absence of statutory provisions.
Other potential interim solutions could be amendments to federal, provincial and territorial
Interpretation acts to explicitly read in a requirement that all decisions-makers carrying out their
functions under legislation must balance their statutory duties with the requirement to achieve
reconciliation with Indigenous peoples. Theses amendments should also provide a definition
of ‘reconciliation’ and this should be consistent with how the term is defined by the TRC as
“establishing and maintaining a mutually respectful relationship between Aboriginal and
non-Aboriginal peoples in this country” (at 7-8). Such directives in legislation would make it
beyond debate that decision-makers are required to consider Indigenous interests any time such
interests are affected by administrative action.
Martin provides a clear statement of the current law: "Administrative tribunals which have
jurisdiction -- whether explicit or implied -- to decide questions of law arising under a legislative
provision are presumed to have concomitant jurisdiction to decide the constitutional validity of
that provision." Moreover, administrative bodies with such authority which do not apply the
Charter, or do not apply it properly, now open their decisions to determinations of reviewable
error.
Loyola:
Under Doré, (this substantive review, deference = reasonableness) where a discretionary
administrative decision engages the protections enumerated in the Charter -- both the Charter's
guarantees and the foundational values they reflect -- the discretionary decision-maker is required
to proportionately balance the Charter protections to ensure that they are limited no more than is
necessary given the applicable statutory objectives that she or he is obliged to pursue.
(1) it must first consider what are the statutory objectives at play; (2) it must
then ask how the Charter value or values at issue will best be protected in
view of the statutory objectives (this is at the core of the proportionality
exercise, and requires the administrative body to balance the severity of
the interference of the Charter protection with the statutory objectives);
and (3) in the Charter balancing exercise, the proportionality test will be
satisfied if the measure selected by the administrative body "falls within a
range of reasonable alternatives".
IF REASONABLENESS (deference) reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
Duty to give reasons: Generally the duty is a procedural right that can be easily discharged, but
under s.7 where the Baker framework is applied, it may amount to a substantive duty to give
adequate reasons that are “responsive” and demonstrate the decision-maker’s reasoning (Suresh).