PRIMER ON JUDICIAL REVIEW
SPEAKING NOTES
Presentation by: Justice J. E. (Ted) Scanlan
Supreme Court of Nova Scotia
September 19, 2001
Introd uction
Judicial review is an integral part of administrative law which some have described as
being the law related to the control of government power, the goal of which is to protect the
individual. Others say it is a system of rules designed to ensure the system works effectively or a
system that is designed to ensure government accountability and foster participation by
individuals. Whatever description or combination of descriptions you adopt, sooner or later
administrative law issues end up in Court. Courts have developed standards or practice which
govern that aspect of administrative law.
Start for a moment with the assumption / reality that parliament is omnicompetent,
recognizing that in Canada we have two levels of government. Ostensibly parliament can do
anything and there is a parliamentary monopoly. In theory the exercise of all power should be
channelled through parliament as public power resides with parliament. Because parliament
cannot, from a practical perspective, execute all of the powers it must of necessity delegate the
exercise of its powers in terms of execution oflegislation to ministers or agencies. In Court we
deal mostly with agencies. We do not often see judicial review of Ministerial decisions.
Understand that when parliament confers or delegates power it does so on an implied
condition that in any grant of power is the principle the sovereign will of Parliament is not to be
transgressed. The role of the Court therefore is not to set the limits of the authority but rather to
ensure that the body to which the power or authority has been conferred operates within the
limits of that authority. In that sense the Court operates to ensure that the board, minister, etc.,
has not accorded to itself a power which has not been accorded to them. We often see the Courts
saying in judicial review decisions that the board for example acted beyond the scope of their
authority. To allow this would be to sanction the usurping of the parliamentary monopoly.
2
There must be a distinction between saying parliament should not have conferred such a power
and saying that no such power was conferred. Courts should avoid any decisions which suggest
that the power should not have been conferred, that would be to enter the political arena.
Remember parliament can do anything they want.
There is enough law in anyone of the subject areas of judicial review to write a book, I
have but a few minutes here today to discuss them all. My comments are therefore but cursory in
nature.
The Supreme Court of Canada's leading cases on judicial review in the 1970's and 1980's
are well known. I start with the notorious case; Metropolitan Life Insurance Co. v. IUOE,
Local 796, [1970] S.C.R. 425. This decision did little to enhance the autonomy of and respect
for administrative tribunals. The case probably impeded realization of certainty of process and
objectives like efficiency and finality. Less than a decade later, the Court seemed to change its
mind completely when it held in CUPE Local 963 v. New Brunswick Liquor Corp. [1979]2
S.C.R. 227 that the standard of review for specialized tribunals, like labour relations boards,
should be that of "patently unreasonable". In the last decade however, about 40 judgments from
the Supreme Court of Canada have had something significant to say on the relatively narrow
issue of standard of judicial review for substantive error. Understanding these decisions can be
difficult because of the number of separate concurring reasons, significant philosophical
differences between the members of the Court as regards the proper relationship between Courts,
administrative agencies, the legislature and judges. Often judges also seem to contradict their
own decisions without reference, to either distinguish or to overrule an earlier pronouncement.
Although the legislature often attempts to insulate administrative tribunals from judicial
review by inserting "privative clauses" into their enabling statutes, no such clause can
completely insulate a tribunal from the superintending and reforming power of the superior
3
courts. To attempt to do this would be to attempt to constitute the tribunal as a superior court.
(See: Crevier v. Attorney General of Quebec, [1981] 2 S.C.R 220.)
I find one of the most complicated aspect of judicial review is the standard by which
superior courts may review an administrative body's decision for errors oflaw or jurisdiction.
Judicial review is not the equivalent of an appeal. In contrast to an appeal, judicial review is not
authorized by the tribunal's constituting statute. It arises out of a superior court's jurisdiction to
supervise inferior courts. In this regard I refer you to Bell Canada v. Canada (C.R.T.C.),
[1989]1 S.c.R. 1722 at 1744-45:
the jurisdiction of a court on appeal is much broader than the jurisdiction of a
court on judicial review.
Judicial review is not meant to be an investigation into the merits of the issue before the
original tribunal. It is meant to be an investigation into the propriety of the processes that
brought about that result. Judicial review concerns itself with the tribunal's application oflaw
only because that is one of the processes by which the result is reached.
In judicially reviewing the proceedings of an administrative tribunal, a court will interfere
in three instances (apart from fraud). They are:
(a)
jurisdictional error;
(b)
failure to conform to principles of natural justice; and
(c)
error oflaw on the face of the record.
I want to mention a few Supreme Court of Canada cases which are somewhat clear and
instructive on the issue of standards of judicial review. They are: Pushpanathan v. Canada
(Min. Of Citizenship and Immigration) [1998]1 S.C.R. 982; Pasiechnyk v. Saskatchewan
4
(Worker's Compensation Tribunal), [1997]2 S.C.R. 890; Baker v. Canada (Min. of
Citizenship and Immigration) (July 9, 1999) (S.c.c.). I would also refer you to texts: Jones and
deVillars, Principles of Administrative law (3rd edition) (Carswells, Toronto, 1999) and Brown
and Evans, Judicial Review of Administrative Action in Canada.
JURISDICTIONAL ERRORS
It will not be easy to identify jurisdictional errors. As Dickson 1. explained in C. U.P.E.
v. New Brunswick Liquor Corporation, [1979]2 S.c.R. 227 ("C.U.P.E."), courts must be
careful not to brand as jurisdictional, that which is only doubtfully so. Jurisdictional errors
generally may be classified as either "narrow" or "broad".
Narrow errors o/jurisdiction relate generally to a provision which confers jurisdiction;
that is, one which describes, lists and limits the powers of administrative tribunal, or which is
intended to circumscribe the authority of the tribunaL Where the tribunal is incorrect in
interpreting such a provision, it will be found to have exceeded its jurisdiction or refused to
exercise its jurisdiction as it was bound to do, and the decision will be set aside (See U.E.S.,
Local 298 v. Bibeault, [1988]2 S.c.R. 1048)
A broad error a/jurisdiction occurs where the question answered by the tribunal was
within its jurisdiction to determine, but the tribunal's interpretation was so patently unreasonable
that its construction cannot be rationally supported by the relevant legislation and demands
intervention.
I have already noted, a tribunal's powers are limited to those conferred on it by statute. A
reviewing Court may examine the tribunal's constituting statute to determine whether it was
acting within its powers. Regardless of whether the tribunal's decision is desirable or reasonable
5
in the circumstances, if the tribunal lacked the power to make the order it made, the order will be
quashed. No deference is given to the tribunal on the narrow question of jurisdiction.
Not all interpretations of a tribunal's enabling statute relate to its jurisdiction. Ordinarily,
a tribunal's interpretation of statutory provisions for the purpose of deciding whether an order
should be made in the circumstances of the case or how that order should be framed receives
curial deference from the Courts. In other words, the tribunal is entitled to be wrong, although
its decision must not be patently unreasonable. Applicants seeking review of a tribunal's
decision will often attempt to paint the tribunal's error as jurisdictional, when it is, in fact, a
simple error of law, in order to reduce the amount of deference that the Court will give to the
tribunal's decision. Courts should be aware of this and avoid the temptation of reviewing a
tribunal's decision on a standard of correctness where the matter in question was within the
tribunal's jurisdiction.
As an example of the narrow type of jurisdictional error I refer you to a recent Nova
Scotia Court of Appeal case; Martin v. Nova Scotia (Workers Compensation Board) [2000)
N.S.J. No. 35, Nov. 8, 2000. In that case the Board had ruled that the provisions in the Act
which dealt with chronic pain would not be applied because they breached the Charter. The
Supreme Court of Canada has granted leave in that case and it has not yet been heard. No matter
what the outcome of the appeal from an administrative law point of view the case is very helpful
in explaining principals of administrative law. I paraphrase Justice Cromwell's comments by
noting three main principles emerging from cases:
1.
the questions ofa tribunal's authority to refusal to apply the provisions of its
enabling statute on Charter grounds is one of statutory interpretation.
2.
when interpreting the statute "what is required is an express or implied grant of
authority to the tribunal to interpret or apply any law necessary to its findings or
6
to address 'general questions oflaw, or to apply the general law of the land to the
disputes before them.
3.
where there is no express grant or withdrawal of authority to decide questions of
law, one may be implied from the scheme of the Act and the role of the tribunal.
I think it is also worth noting some of the other comments of Justice Cromwell from that
decision and I quote:
It is important to be precise about the jurisdictional issue presented in
these appeals, and also about what is not in issue. There is no question that the
Nova Scotia Workers' Compensation system is subject to the Canadian Charter
of Rights and Freedoms. The Charter is part of the Constitution which is the
supreme law of Canada. Under the terms of s.52 of the Constitution Act, 1982,
any law that is inconsistent with the provisions of the Constitution is, to the extent
of the inconsistency, of no force or effect. The workers' compensation system is
established by provincial legislation and that legislation must comply with the
Constitution, including the Charter. The question in this case is not whether the
Legislature must respect the Charter when it enacts workers' compensation
legislation. The question is who decides where the Legislature has done so.
". we are concerned on this appeal only with the provisions of the Act and
Regulations that confer and restrict benefits; to the extent that the Charter
jurisdiction analysis might be different in relation to other types of provisions, this
appeal addresses only Charter jurisdiction in relation to such benefit provisions,
and all subsequent references in my reasons to WCAT's Charter jurisdiction
should be understood in that way.
The Court applied those principles to the Workers Compensation Tribunal and said the
Act makes it clear the role of that Tribunal is to provide an independent and prompt review of
the Board's application of the Act, not to determine whether the Legislature has exceeded the
constitutional limits of its authority. The Court then went on to rule on the constitutionality of
the relevant provisions of the Act.
I wanted to refer you to a more recent case form the Supreme Court of Canada which
came down after Martin. That is Trinity Western University v. Bell College of Teachers
7
[2001] SCJ No. 32. There is little doubt in my mind that case will be referred to again when the
Martin appeal is handed down. On the narrow issue of interpretation of the Charter Supreme
Court of Canada said there is an implied authority in an administrative tribunal to interpret and
apply relevant provisions of the Charter. No doubt as you read the decision you will have a
broader and more thorough understanding of the case. A paragraph here cannot do it justice: I
refer you to the case just to suggest the possibility the court is indicating that there is authority in
tribunals to conduct inquiries that are necessarily incidental to their legislatively mandated task.
DEFERENCE TO ADMINISTRATIVE DECISION
There are several factors that influence the degree to which a Court will defer to a
decision of a tribunal.
Privative Clauses
I have already mentioned a privative clause cannot prevent a Court from reviewing a
tribunal's decision for jurisdictional error. A privative clause however may assist in persuading
the Court to defer to the tribunal on other types of errors. Where a tribunal has the protection of
a privative clause we see in the language of some cases, "it has the right to be wrong" (Re
Ontario Public Service Employees Union and Forer (1985), 23 D.L.R. (4th) 97 (Ont. C.A.) at
107)
Many different types of privative clauses are enacted by parliaments. They vary in both
strength and comprehensiveness. Not all privative words have the same privative effect: Dayco
(Canada) Ltd. v. C.A.W. - Canada, [1993]2 S.C.R. 230. In Dayco, LaForest J. stated that the
8
expression "final and binding upon the parties" provides a more limited shield against judicial
review for decisions of an arbitrator.
At one time, Courts followed an interventionist policy despite the use of privative
clauses. Some suggested the courts consistently intervened against the express wishes of the
legislature because they were reluctant to acknowledge the expertise of tribunals and were often
hostile to the policies that they were meant to espouse. A new attitude of judicial restraint was
initiated in the case of S.E.I.U. Local 333 v. Nipawin District Staff Nurses Association, [1975]
1 S.c.R. 382.
In Domtar Inc. V. Quebec (Commission d'appel en matiPre de IJsions professionnelles),
[1993]2 S.C.R. 756, where Madam Justice L'Heureux-Dube for the unanimous Court stated that
the patently unreasonable error test as enunciated in C.U.P.E." .. is the pivot on which judicial
deference rests (774)."
In U.E.S., Local 298 v. Bibeault, supra, after various attempts to articulate the difference
between questions going to jurisdiction and those falling within the specialized competence of an
administrative body, the Supreme Court of Canada established what it termed the "pragmatic and
functional" approach. Beetz J., writing for the Court, explained that the question is whether the
legislature intended the issue to be within the tribunal's jurisdiction. Beetz J. directed Courts to
consider the following factors in undertaking this task:
(a)
the wording of the enactment conferring jurisdiction on the tribunal;
(b)
the purpose of the statute in creating the tribunal;
(c)
the reason for the tribunal's existence;
(d)
the area of expertise of the tribunal's members; and
(e)
the nature of the problem before the tribunal.
9
In Canadian Broadcasting Corp. v. Canada Labour Relations Board, [1995]1
S.c.R. 157, Iacobucci J. suggests that in deciding an issue of statutory jurisdiction, as a starting
point there must be recognition that, when dealing with a tribunal as specialized as the Canada
Labour Relations Board, inherent in whose functioning is the need to resolve disputes quickly
and with finality, courts should be reluctant to characterize a provision as jurisdictional unless it
is clear that it should be so labelled.
Cory, J. in Royal Oak Mines Inc. V. Canada (Labour Relations Board), [1996]1
S.C.R. 369 observed that, if Courts too readily characterize a provision as jurisdiction-limiting,
the role accorded to the Labour Relations Board would be effectively usurped by the Courts. In
a more recent Supreme Court decision, International Longshoremen's and Warehousemen's
Union, Ship and Dock Foreman, Local 514 v. Prince Rupert Grain Ltd., [1996]2 S.C.R.
432, Cory 1, writing for the Court, issued a strong warning against the frequent characterization
of issues as jurisdictional. He stated:
If these warnings are not heeded, the operation and indeed the whole concept of
administrative tribunals may be jeopardized (446).
Curial Deference in the Absence of a P,·ivative Clause
The Supreme Court of Canada has recently in the Pezim case indicated that even in the
absence of a privative clause, courts should be willing to show some deference to tribunals due
to their specialized expertise.
Even though the B. C. Securities Commission was not protected
by a privative clause, the Court concluded that the appropriate standard of review was
reasonableness. Similarly, in Southam, Iacobucci J., held that deference was owed to the
competition tribunal on appeal. The new intermediate standard of review adopted by Iacobucci 1
and applied on the facts of this case was one of "reasonableness simpliciter". The difference
10
between "unreasonable" and "patently unreasonable," according to Iacobucci 1., lies in the
immediacy or obviousness of the defect. If the defect is apparent on the facts ofthe tribunal's
reasons, then the tribunal's decision is patently unreasonable. But, if it takes some significant
searching or testing to find the defect, then the decision is unreasonable but not patently
unreasonable.
If you are as confused as I am in attempting to follow the Court's distinctions between
"patently unreasonable", "correctness" and now "reasonableness simpliciter", you will enjoy the
comments of Justice Barry of the Newfoundland Supreme Court in Miller v. Newfoundland
(Workers' Compensation Commission) [1997] NJ. No.1 59 (Nfld. S.C.)where he stated that:
... one feels at times as though one is watching a juggler juggle three transparent
objects. Depending on the way the light falls, sometimes one thinks one can see
the objects. Other times one cannot and, indeed, wonders whether there are really
three distinct objects there at all.
It remains to be seen how this new standard of review will be applied in other types of
cases. The level of deference that will be accorded to a tribunal will depend largely on the
Court's perception of the extent of the tribunal's expertise. For example, the Supreme Court has
been reluctant to acknowledge the expertise of human rights tribunals and have thus accorded
them less deference. Where no privative clause was in place, although the Supreme court held
that deference should be paid to the tribunal's findings offact, it also held that they need not
defer to the legal decisions of these tribunals (see Ross v. New Brunswick School District No.
15, [1996]1 S.c.R. 825; Gould v. Yukon Order of Pioneers, [1996]1 S.C.R. 571; Canada
(Attorney-General) v. Mossop, [1993]1 S.C.R. 554.
In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998]1
S.C.R. 982, the Supreme Court of Canada concluded that a jurisdictional error is simply one that
must be assessed on the basis of correctness. Bastarache 1. noted that the language of
11
"preliminary", "collateral" and "jurisdictional" had been replaced by a pragmatic and functional
approach, and stated that:
It should be understood that a question which "goes to jurisdiction" is simply
descriptive of a provision for which the proper standard of review is correctness,
based upon the outcome of the pragmatic and functional analysis. In other words,
"jurisdictional error" is simply an error on an issue with respect to which,
according to the outcome of the pragmatic and functional analysis, the tribunal
must make a correct interpretation and to which no deference will be shown.
(1005)
Therefore, the primary question a Court must ask is not whether the issue goes to jurisdiction of
the tribunal, but rather "was the question which the provision raises one that was intended by the
legislators to be left to the exclusive decision of the Board?"
The pragmatic and functional approach involves consideration of four factors: the
presence or absence of privative clause, the expertise of the tribunal, the purpose of the Act as a
whole, with particular reference to the empowering provision and the nature of the problem
(whether it is a question oflaw, mixed law and fact, or offact). The most important factor is the
expertise of the tribunal. A serious problem for reviewing Courts is the question "just how are
they to determine a board or board members are experts?"
As a general rule, curial deference need not be shown to an administrative tribunal in its
interpretation of a general public statute other than its constituting legislation. The appropriate
standard of review in such cases is correctness. For example, in Cuddy Chicks Ltd. V. Ontario
(Labour Relations Board), [1991] 2 S.C.R. 5 and Bell v. Canada (Canadian Human Rights
Commission), [1996] 3 S.C.R. 854, the Supreme Court of Canada held that if an administrative
tribunal was given the power to determine questions of law in its enabling statute, it would hold
"a concomitant power to determine whether that law is constitutionally valid"
12
Consensual Arbitrators
What is the applicable standard of review where the decision maker is a consensual
arbitrator who is making a determination of law? The Supreme Court of Canada appears to have
endorsed a policy of restraint when it comes to reviewing the decision of consensual arbitrators.
See Volvo Canada Ltd. V. International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, Local 720, [1980]1 S.C.R. 178,
Telecommunication workers Union v. British Columbia Telephone Company, [1988]2
S.C.R. 564. Courts should not interfere with an arbitrator's decision where the decision involves
an interpretation of a collective agreement, and should be even more hesitant to do so where the
arbitration is consensual, unless his or her interpretation is so unreasonable that it cries out for
inference.
NATURAL JUSTICE
_ _ _Under common law principles of natural justice, a party affected by decisions of a
tribunal has the right to procedural fairness, or "the right to be heard." The right to be heard
includes, at a minimum, adequate notice of the case to be met and the right to make
representations to the tribunal. Principles of natural justice also require a hearing by an impartial
tribunal.
Prior to Ridge v. Baldwin [1964] A.L. 40, the application of the principle of natural
justice was at a low. In Ridge v. Baldwin the House of Lords ruled that a chief constable
dismissed for cause was entitled to notice of the charge and an opportunity to be heard before
being dismissed. Lord Reid's discussion of the principles of natural justice in that case is very
important in administrative law today.
13
Keep in mind natural justice is fluid. Lord Reid for example said what was appropriate in
war time may not apply in non war time. If there is a formula which emerges from Ridge v.
Baldwin it is the idea that the applicability of natural justice will be dependent on the nature of
the power exercised and its effect upon the individual concerned. In administrative law cases
counsel should appreciate the human aspect of a tribunals decision and use this as an opportunity
to make their case three dimensional, applying the principles as enunciated in Baldwin. If you
argue a case in terms of natural justice ensure the Court understand the full impact of earlier
proceedings vis a vis your client and for others who may follow.
Procedural Fairness
Before the Supreme Court of Canada's decision in Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners, [1979] 1 S C.R. 311, the princi pies of natural justice were
restricted in application to statutory tribunals classified as "judicial" or "quasi-judicial".
Nicholson, however, established that the right to procedural protection does not depend on the
classification of a tribunal's function but on the effects of the decision on the individual (or
group) in question. In spite of Nicholson, the function performed by an administrative tribunal is
still relevant to the determination of the extent to which procedural fairness is owed. Courts will
consider the nature of the interest affected by the tribunal's decision.
I refer to Re Webb and Ontario HOllsing Corporation (1978), 22 O.R. (2d) 257 (C.A),
which would seem to clearly indicate that Courts are prepared to draw a distinction between
those applying for a benefit and those seeking to maintain a benefit In Re Scarborough
Community Service and The Queen (1985),17 D.L.R. (4th) 308 (F.C.A), a benefit was being
sought rather than taken away. In that case, the Federal Court of Appeal held that the Minister of
National Revenue was under no obligation to grant a hearing to an organization applying for
registration as a charitable organization under the Income Tax Act. The Court also held that if
14
the Minister proposed to revoke an organization's charitable organization status, the Minister
must comply with the rules of procedural fairness.
Procedural Safeguards in the Correctional Process
Before Martineau v. Matoqui Institution Disciplinary Board, [1980]1 S.C.R. 602
prisoners were thought by many to have no rights and therefore no claim to procedural fairness
in the context of decisions which affected them. That case and Cardinal v. Canada (National
Parol Board) (1990) 38 F.T.R. 315 confirmed that inmates are no less deserving of the right to
procedural fairness than others. For a useful summary of the principles of natural justice as they
apply to the correctional process see Gaudet v. Marchand, (1994), 63 Q.A.C. 286, affd [J 994]
3 S.C.R. 514.
Because of the lack of time in this session I simply take a minute to refer you to cases
that you may find of particular interest in relation to specific subject areas.
Disciplinary Proceedings
See Kane v. Board of Governors of the University of British Columbia, [1980]1
S.C.R 1105.
Tenure Decisions
See Re Ruiperez and Board of Governors of Lakehead University (1983), 147 D.L.R.
(3d) 154 (Ont. C.A.), affg (1981),130 D.L.R (3d) 427 (Ont. Div. Ct.).
Contract RenewallRenewal of Contract
See Re Bennett and Wilfrid Laurier University et al. (1983), 43 O.R. (2d) 123 (Div.
Ct.).
15
Promotion Re Wong and Roberts (1983),147 D.L.R. (3d) 375 (B.C.S.C.).
Institutional Decision-making
I pause for a moment and discuss in more detail institutional decision making as it may
be of greater general interest. I begin here by asking: When do the internal decision-making
procedures of a tribunal violate the principles of natural justice? The Supreme Court of Canada
considered this question in Re Consolidated-Bathurst Packaging Ltd. V. I.W.A., Local 2-69,
(1990)1 S.c.R. 282 and Tremblay v. Commission des Affaires Sociales, [1992]1 S.C.R. 952.
The issue was whether a long-time practice of the Ontario Labour Relations Board offended the
principle of natural justice that "he or she who hears must decide" The practice in issue
involved periodic meetings of the full board to discuss policy matters. In those meetings, the
chair of a hearing panel would place a draft decision before the full board, and its members
would discuss policy alternatives. The parties were neither notified of the meeting, nor were
they permitted to be present. Gonthier J.'s view seemed to be that in the absence of coercion,
discussion with another who has not heard the evidence could not itself vitiate the resulting
decision simply because the discussion may "influence" the decision maker. Gonthier J.
concluded that the principles of natural justice were not breached by the full board meeting in
connection with the proceeding before the three person panel.
In Tremblay, Gonthier J. again considered whether the internal decision-making
procedures of a tribunal violated the principles of natural justice, but with a different result. The
applicant was on social assistance and was refused reimbursement for the costs of certain
dressings and bandages. A two-member "quorum" of the Commission wrote a draft report
favourable to Tremblay, but, on seeing the draft report, the President of the Commission placed it
on the agenda of the next "plenary meeting" of the Commission. At the plenary meeting, a
majority of members, including the President, criticized the drqft decision One of the authors
16
then changed her mind. In accordance with the Commissions' rules, because the original
quorum was no longer unanimous, the matter was submitted to the President who,
unsurprisingly, released a decision unfavourable to Tremblay. Tremblay brought an action
alleging that the Commission's deliberative procedure denied her natural justice. The Supreme
Court of Canada accepted this submission. Gonthier J. held that the procedure used by the
Commission violated the principles of natural justice in a number of ways. The two-member
quorum was statutorily charged with making the decisions. The compulsory nature of the plenary
discussions, the voting and minute-keeping procedures at these discussions, and the power of the
President to refer an issue to a plenary discussion effectively turned consultation into an "act of
compulsion" directed at the quorum. Gonthier J. Indicated that the crucial difference between
Tremblay and Consolidated-Bathurst was the extent to which the consultative procedure acted
as a constraint on the tribunal members who must render the actual decision.
17
Bias
Bias, the second arm of natural justice principles, concerns the right to be heard by an
impartial tribunal. It is based on the premise that justice should not only be done, but should be
seen to be done. There are many possible subheadings under the heading of bias. I can deal with
but a few.
The Supreme Court has held in Old St. Boniface Residents Assn. Inc. V. Winnipeg
(City), [1990]3 S.C.R. 1170, that it is no longer necessary to classify a function as judicial or
quasi-judicial to challenge a decision on the grounds of bias. The strictness of the test for bias
depends on the context in which the decision is made.
The classic test for when a reasonable apprehension of bias exists was stated in
Committee for Justice and Liberty v. National Energy Board, [1978]1 S.C.R. 369:
... the apprehension of bias must be a reasonable one, held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that test is"what
would an informed person, viewing the matter realistically and practically -- and
having thought the matter through conclude (394).
There are situations where the Courts have held there is statutory authority for or a
necessity for bias. In R. V. Wickman, [1998]1 S.C.R. 3. the doctrine of necessity was applied
since there was no impartial judge to take the place of the judges who lacked independence. It
was reasoned that "in some situations ajudge who is not impartial and independent is preferable
to no judge at all." (You should decide this one for yourselves)
It is important to keep in mind that there will be no finding of attitudinal bias so long as
the decision maker has the appearance of open mindedness with respect to the issues under
18
consideration. In Committee for Justice and Liberty v. Canada (National Energy Board)
[1978] 1S.C.R. 369 Marshall Crowe, President of Canada Development Corporation had been a
member of a consortium of companies which conducted a research and feasibility study of
construction of a northern natural gas pipeline to transport natural gas to southern markets. Mr.
Crowe had been an active participant in the study group. Mr. Crowe became chairman of the
National Energy Board in 1973. In 1975, the consortium applied to the National Energy Board
for permission to construct pipelines, which was granted. The Supreme Court of Canada held
that a reasonable apprehension of bias existed with respect to the approval of a pipeline
application.
Sallom
Before I conclude I want to mention another case from Nova Scotia that will likely have a
substantial impact on the volume of judicial reviews in the Supreme Court. In Sallom v. N.S.
Worker Compensation Appeals Tribunal, [2000] N.S.J. No.415 the appellant was an
employee of the Federal Government. She appealed a decision of the Workers Compensation
Board to the Court of Appeal. The case is somewhat fact specific but serves to illustrate the
importance oflegislative jurisdiction. The GECA (Government Employees Compensation
Act) Section 4(3) gives the Worker's Compensation Board jurisdiction to adjudicate claims of
workers who are covered by GECA. The Court of Appeal noted that employees must look to the
GECA for the process in obtaining relief from a Workers Compensation Tribunal. That Federal
Act is silent on the issue of judicial review and the Court of Appeal held that Provincial Statute
providing for appeal to the Court of Appeal did not apply. The court held therefore the obvious
avenue to challenge a decision under that legislation is through an application to the Supreme
Court for judicial review by way of cerliorai. It is interesting to note the Court in an earlier
decision, Ferneyhough in October, 2000, NSJ No. 342, did hear a case dealing with a Federal
employee. The issue of jurisdiction was not raised on that appeal though.
19
Before closing I wish to note that I have drawn extensively on an excellent paper
prepared by Karen Busby, Associate Professor of the Faculty of Law, University of Manitoba as
prepared for the Atlantic Courts Seminar in November of 1999. I thank you for inviting me and
apologize for the summary nature of this paper and presentation. Time today and my schedule
have limited what I could do in both. I hope this may serve as something of a primer for those
who practise in this area of the law.
(This is a slightly revised update of speaking notes that were first prepared for a
presentation to the Administrative Law Section of the Canadian Bar Association, Nova Scotia
Branch, on May 30th 2001.)
20