On the Blurry Line Between Substance and Procedure? Syndicat des employées et employés professionnels et de bureau, section locale 574, SEPB, CTC-FTQ c. Groupe Pages jaunes Cie, 2015 QCCA 918
When an administrative decision-maker hears argument but decides a point on another ground, what is the appropriate posture of a reviewing court? Is this a matter of procedural fairness, because it goes to the ability of the parties to make full and complete submissions, or is it a matter of substantive reasonableness, because it goes […] Read more
Deference, Weight and Procedural Fairness
In both Canada and the United States, considerable jurisprudential effort has been expended on identifying “standards of review” of administrative action. Standards of review refer to the tests applied to determine whether a court should strike down administrative decisions.Most of the time, when administrative lawyers speak of “deference” they have in mind a standard of […] Read more
Canada’s Bi-Polar Administrative Law: Time for Fusion
Canadian judicial review of administrative action is structured around two poles: substantive review and procedural review. On matters of substance, the administrative decision maker is generally accorded deference by the reviewing court. On matters of procedural fairness, the court accords no deference, and determines the “correct” process. The author argues that this distinction is indefensible […] Read more
The Basis of Fairness in Administrative Law: Osborn v. The Parole Board
The recent UK Supreme Court decision in Osborn v. The Parole Board,  UKSC 61 has already provoked interesting commentary on the relationship between the common law of procedural fairness and the European Convention on Human Rights. I have nothing to add to that commentary, but one of the things I find interesting about Osborn […] Read more
The Federal Court of Appeal on Inadequate Reasons
The Supreme Court of Canada took the (in my view) reasonable step in Newfoundland Nurses, 2011 SCC 62 of separating procedural review for failure to provide reasons from substantive review for reasonableness. One concern that might be voiced in response is that rolling a procedural right to reasons into substantive review may give too much […] Read more
What Happens if you Overhear a Decision-Maker’s Deliberations?
A funny thing happened at the Tribunal Administratif du Québec recently. A hearing was conducted into the suspension of an individual’s driver’s licence by videoconference. One of the administrative judges was present at the hearing; the other joined from a remote location. When the SAAQ — the administrative agency that controls drivers’ licences — sought […] Read more
Self-Represented Litigants and Administrative Tribunals
We know that administrative tribunals have plenty of scope to design their own procedures, which need not resemble those of a regular court. But there are limits, as the Québec Court of Appeal recently explained in a case involving a real estate agent who represented himself — unsuccessfully — at a disciplinary hearing.In Ménard c. […] Read more
Towards a Right to Respond in Immigration Law?
You know when academics say, “Some of my best ideas come from students”? Sometimes, we mean it.A student I had a couple of years ago came to talk to me about procedural fairness in administrative law. “Why don’t you focus more on the right to respond? We talk about hearings, the right to counsel, and […] Read more
Process and Substance: What Happens when the Decision-Maker Doesn’t Listen?
Another example from the Canadian courts of the thin line separating process from substance: Turner v. Canada (Attorney General), 2012 FCA 159. On this occasion, the determination that a question went to process is again plausible at first sight but troubling on closer inspection. The applicant here alleged that he was discriminated against by the […] Read more
Reasons and Reasonableness in Administrative Law
In describing the deferential standard of review of reasonableness in Dunsmuir v. New Brunswick, the Supreme Court of Canada was very eloquent. Where a standard of review of correctness is appropriate, the reviewing court substitutes its judgment for that of the initial decision-maker. But where deference is owed, A court conducting a review for reasonableness […] Read more