The 3Ms Present: HOT TOPICS IN ADMINISTRATIVE LAW

1. The 3Ms Present: HOT TOPICS IN ADMINISTRATIVE LAW Michael Doi Michelle Flaherty Margaret Leighton SOAR Conference November 3, 2016

2. The Standard of Review Smackdown

3. Why do we care about the standard of review? avoid being (successfully) judicially reviewed/appealed understanding when a court may interfere is the starting point to making decisions that will withstand scrutiny

4. Swinging pendulum

5. Dunsmuir test In essence: Has existing jurisprudence appropriately determined the standard of review in similar or analogous circumstances? YES ? adopt that standard NO? contextual analysis (nature of the question, privative clause, relative expertise)

6. Dunsmuir Fallout not reinventing the wheel with each case imports aspects of old (dis)functional test Assumptions/shortcuts based on nature of the question Achieve a balance between certainty and flexibility?

7. Commission scolaire de Laval, 2016 Issue is whether to discharge a teacher, based on criminal record collective agreements: discharge only after "thourough deliberations" Commission holds in camera meeting, Union wishes to summons Commissioners Board objects: deliberative secrecy Arbitrator allows examination

9. Take away from Commission scolaire de Laval Shortcut to Dunsmuir: presumption based on nature of the question But identifying the nature of the questionand the basis for rebutting the presumption : can be controversial The subjectivity of the reasonableness standard

10. Wilson v. Atomic EnergyTHE SMACKDOWN Interpretation of s. 240 of the Canada Labour Code Does it protect employees from unjust dismissal? (cause vs. severance) Two opposing trends in the jurisprudence

11. FCA on standard of review Normally: interpretation of home statute attracts a standard of reasonableness "Unusual situation": reasonableness standard won't help to resolve the "persistent discord" (rule of law concerns) Don't need to decide the standard: either way, the outcome would be the same. ("even if we apply the standard of reasonableness, we would afford only a narrow margin of appreciation")

12. SCC: The decisions of labour adjudicatorsor arbitratorsinterpreting statutes or agreements within their expertise attract a reasonableness standard. Adjudicator’s decision was reasonable The fact that a handful of adjudicators have taken a different approach to the interpretation of the Code does not justify deviating from a reasonableness standard.

13. Abella’s “obiter on streamlining” principled way to simplify the path to reviewing the merits. collapse the two standards question becomes whether the decision falls within a range of defensible outcomes

14. The Other Judges Thanks but no thanks We’re sticking to Dunsmuir

15. Issues the SCC could have (but didn’t) address Focus on the standard of review - necessary to reaching a conclusion? Does a persistent discord raise a dispute to the level of "general importance"? If so, when is the dispute "persistent"? What does "reasonableness" mean?

16. DEADLOCKS

17. Law Society of Upper Canada v Watson: 2015 ONLSTH 189; 2015 ONLSTH 119; 2016 ONLSTH 135 62 day discipline hearing before 3 member panel. Huge credibility issues with complainant. After cross-examination LSUC asks to withdraw allegations. Panel refuses and dismisses the complaint. Lawyer seeks costs. Law Society Act ss. 49.23(3) and Regulation s.3(4) requires costs request to be heard by panel of 1 or 3. The 3 members who decided merits go on to hear costs. Procedural issue decided first. Before reconvening to hear arguments on costs a member of panel is appointed to bench. 3-1=2 LSA doesn’t address this situation. SPPA s.4(1):where a member “incapable” remaining members complete hearing and make decision. BUT SPPA has no tiebreaker provision. Costs heard by remaining two members. They don’t agree. DEADLOCK

18. So if you don’t win do you lose? Law Society argues the Lawyer had the burden of proof and since he failed to convince the entire panel he lost. No unfairness. Lawyer agreed to two member panel despite the risk of a deadlock. Re-hearing not contemplated by statute and offends principle of finality. Assigning another member also not statutorily possible and offends principle that person who hears must decide. Lawyer not without remedy – there is an appeal.

19. Onus is not the issue2015 ONLSTH 119 at para 27 In our view, the Law Society’s argument confuses the onus to persuade the decision maker with the question of how the decision of a multiple member panel is determined. Our conclusion is strengthened by examining the consequences of the approach the Law Society proposes. It would mean that, in all future cases, if the remaining two panelists are deadlocked as to a finding of misconduct, the Law Society loses. It would provide no method for resolving a deadlock as to penalty or the amount of costs. That cannot be the correct result in the public interest.

20. Equality of all panel members . 2015 ONLSTH 119 at paras 31-32 Law Society’s position would mean chair’s reasons carry the day as she refused costs. No statutory basis to adopt that approach. Not fair or equitable given the profound disagreement between the two panel members. It would not reflect the principle that all panel members are equal participants in the hearing.

21. Must exercise jurisdiction and make a decision. 2015 ONLSTH 119 at paras 34, 36 We are not functus officio and we have jurisdiction for the purpose of making an order. Allowing or dismissing the motion is not the only order we have the jurisdiction to make in the circumstances. In our view, natural justice and finality can only be served by a new panel being constituted to hear afresh Part Two of the Lawyer’s motion for costs.

22. Key Takeaways Absent a tiebreaker provision there is no hierarchy among members’ decisions. Finality and fairness require true resolution of the dispute. BTW the newly constituted panel, unanimously, refused to order costs. 2016 ONLSTH 135. That decision is being appealed.

23. Admin law and the Charter: Admin law and the Charter: Beyond Doré Section 11

24. Doré et Après Doré

25. LOYOLA V. QUEBEC Ethics as part of core curriculum, "neutral and objective" Catholic high school applies for exemption, "equivalent" program ... but from catholic perspective Minister denies exemption, not "equivalent" given catholic perspective Does the MInister's decision infringe right to religious freedom?

26. Application of Doré • constitutionality of administrative decision • not a Charter analysis • is the admin decision reasonable because it "reflects a proportionate balance of Charter rights and relevant statutory mandate"? • "highly contextualized exercise"

27. Or wait…. Isn’t that a s.1 analysis? Dore framework starting to look a lot like a s. 1 analysis SCC considers objective of the statute, whether the denial is rationally connected to that objective, whether other ways of achieving objective (minimal impairment?) SCC finds Minister's position too rigid: any departure from strict neutrality not "equivalent" limits freedom of religion more than necessary to achieve statutory objective of diversity/respect. NOT REASONABLE OR PROPORTIONATE

28. Section 11 of the Charter

29. When does s. 11 of the Charter apply?:Guindon v. Canada, 2015 SCC 41 Section 11 of the Charter provides a series of procedural protections to “any person charged with an offence” Including: be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal and to be tried within a reasonable time. For example, constitutional right to impartial decision-maker

30. Charged with an Offence? Ms. Guindon was assessed a penalty under the Income Tax Act. Is she a “person charged with an offence” within the meaning of s. 11  of the Charter?

31. Guindon v. Canada, 2015 SCC 41 • SCC upholds Wigglesworth/Martineau test: • Section 11 applies if the proceeding is criminal by nature or is there a “true penal consequence”

32. What does that mean, exactly? Criminal by nature: A proceeding is criminal by its very nature when it is aimed at promoting public order and welfare within a public sphere of activity. Proceedings of an administrative nature, on the other hand, are primarily intended to maintain compliance or to regulate conduct within a limited sphere of activity. The focus of the inquiry is not on the nature of the act which is the subject of the proceedings, but on the nature of the proceedings themselves

33. Look for the “traditional hallmarks of a criminal proceeding” Is the sanction a true penal consequence? “imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within [a] limited sphere of activity

34. SCC looks to factors such as The legislative scheme & the provisions at issue The nature proceeding (whether uses words/adopts process akin to criminal vs. administrative process) Possible outcomes (magnitude)

35. A “true penal consequence” is “imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within [a] limited sphere of activity The magnitude of the sanction on its own is not determinative

36. Recent Decisions on Reasonable Apprehension of Bias

37. Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60 A reasonable apprehension of bias requires a “real likelihood or probability of bias”. The strong presumption of judicial impartiality is not easily displaced. The test is an objective one, viewed from the perspective of an informed and reasonable observer.  It is a high burden. The assessment of a reasonable apprehension of bias is a difficult one. It requires a careful and thorough review of the proceedings since the cumulative effect of the alleged improprieties is more relevant than any single transgression.

38. Cumulative Effect and Context In assessing whether the presumption of impartiality has been displaced, adjudicator’s individual comments or conduct during the hearing of a matter not considered in isolation but within the context of the entire proceedings. If the impugned conduct or comments have the cumulative effect of raising a reasonable apprehension of bias, there is no need to consider the impact of the bias.

39. The context in this case • Adjourns motion on own initiative to give respondents a chance to correct a flaw judge saw as fatal to their position • Dismisses motion without allowing appellants chance to make argument on two key parts • Improperly characterizing appellants’ concessions in reasons • Called appellant’s motion an abuse of process • Describes cross-examination as a “waste of time”. Argument as “frustrating”, “interminably, circling around and about, in and around.” • Took nine months to prepare amended reasons “for appeal purposes” • Used language in reasons which appeared to insinuate himself into the appeal process and bolster decision

40. OCA finds cumulative effect results in a reasonable apprehension of bias at para. 88 I have no doubt that the motion judge was well-intentioned. I have no doubt that he put a great deal of effort into resolving the jurisdiction issue. However, my review of the three endorsements leads me to conclude that the motion judge’s actions gave rise to a reasonable apprehension of bias. He made unwarranted negative comments about the appellants – their counsel, their position, and their arguments – prior to the conclusion of argument and arbitrarily curtailed argument. He then wrote reasons that went beyond reflecting the reasoning process and entered the fray as an advocate for his actions.

41. Clayson-Martin v. Martin, 2015 ONCA 596 Spouses on vacation in Jamaica. Husband arrested and tried for attempted murder of wife in Jamaica. He claims self-defence – wife was attempting to murder him. Husband acquitted. Returns to Canada Bitter custody dispute ensues. Wife is represented Husband is self-represented

42. Ensuring fairness for self-reps, getting the evidence you need to make a decision, and maintaining impartiality When one party is self-represented, balancing trial efficiency and effectiveness with the appearance of independence and impartiality can be truly challenging. In this case, the trial judge’s primary obligation was to determine the children’s best interests. In this context, I am particularly reluctant to criticize him for questioning witnesses in an attempt to get to the truth. What was inappropriate, however, was for the trial judge to appear to already favour the husband’s version of events over the wife’s in the course of questioning these witnesses.

43. CAS of the United Counties of Stormont, Dundas and Glengarryv. S.V.D., 2016 ONSC 350 Application of Clayson-Martinin administrative hearing context CFSRB determining the best interests of a child in context of dispute between two proposed adoptive families. The CAS is represented and its lawyer also represents one of the families. The other family is self-rep’d.

44. Uneven consideration of evidence Exclusively positive findings about one family. Failed to address evidence to contrary. In contrast focusses at length on negative evidence concerning other family and does not address evidence of resolution of these concerns or positive findings. Contrary evidence about whether one family had expressed a consistent intention to adopt not pursued. Did not explore inconsistencies in applicant’s testimony on this subject. Markedly different from the treatment afforded the other family on same issue

45. Questioning by Panel Questions cross the line into cross-examination Q 620. So you’re saying you forgot that you have a separation with your spouse and your children? Q 627. So, if you’re aware that you had struck your wife, why did you not answer that there was domestic violence? Q 638. Now, on Questionnaire II, again in section 2 of that questionnaire, it asks, have any of the issues listed below ever presented a problem for you or your spouse.  And one of the section[s] is controlling temper and you did not indicate that this was a problem for you.  Why would that be? A.  At the time, it wasn’t a problem. Q 639.  No, it says was it ever a problem for you to control your temper. They’re asking you this in 2012? Q 653. When did you stop drinking?  Or did you ever actually completely stop?

46. Cumulative Effect = RAB I have concluded that the extremely high threshold required to support a finding of reasonable apprehension of bias has been established.  The objective of ensuring not only the reality but also the appearance of a fair adjudicative process was not met.  The cumulative impact of the repeated forays by the Chair into the fray created the appearance that she had aligned herself with the V.D.s while the hearing was in process.  

47. Context: Unconscious Bias No matter how well intentioned her interventions, this created the appearance that she was not impartial as between the parties. These were not isolated occurrences. Uneven treatment of witnesses, overlooking evidence favourable to the Society and the C’s, lengthy interventions in questioning, cross-examination of key witnesses, and challenging witnesses as to their testimony occurred throughout the hearing. In my view an informed person would more likely than not conclude that the decision maker would, and here the submission is unconsciously, not decide the case fairly.

48. Key Takeaways Some combination of one or more of these concerns may, in a particular context, lead to a finding of RAB Extensive questioning of witnesses, particularly where care is not taken to question in an open-ended and neutral manner, may raise concerns for the Court about impartiality. Negative characterisations of party’s conduct or witnesses expressed in intemperate language Questioning or reasons which fail to fairly address conflicting evidence or treat the evidence unevenly.

49. And now for something completely different?

50. Harbv HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 (16 June 2016) High stakes dispute about 12 million£ and 2 London homes between a former wife of the former King of Saudi Arabia and the Kingdom. Side issue: Prince is represented by lawyers from firm which had appeared before the Judge on behalf of British Airways (BA) in major commercial trail the year before. Things had not gone smoothly … During a break in the BA trial the judge and his wife flew, on BA, to Florence for the weekend. They returned to England on the Sunday but their luggage did not. It arrived the following Wednesday. The judge was very upset. He complained, in writing, to BA’s Chairman …. using his judicial stationary.