1. JUDICIAL REVIEW OF ADMINISTRATIVE DECISION-MAKING SEPTEMBER 30, 2013

2. Overview Administrative law and judicial review of administrative decisions Public Interest Standing Standard of Review (reasonableness vs. correctness Privative Clauses Grounds for Judicial Review

3. Administrative Law and Judicial Review Rules governing statutory decision- making by agencies, tribunals, officials Examples of decisions subject to judicial review: development project approvals by Cabinet or ministers, environmental assessments, tribunal decisions Judicial reviews vs. actions vs. appeals Legality of decision vs. ruling on merits Decisions vs. Recommendations

4. Law of Public Interest Standing What is standing? What is difference between private and public interest standing? “Private rights at stake” or “specially affected by the issue” Why open the courts to busybodies? Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45

5. Downtown Eastside Decision How did this case get into court? Three factors relating to standing: –Does case raise serious justiciable issue? –Does party bringing case have “a real stake in the proceedings or is engaged with the issues that it raises”? –Is case “a reasonable and effective means to bring the case to court”? How did law shift with this case?

6. Downtown Eastside Decision Considerations relating to “a reasonable and effective means” test: –Economical use of judicial resources? –Issues presented in context suitable for judicial determination in adversarial setting? –Uphold the principle of legality? Does Downtown Eastside decision have implications for “interested party” determinations?

7. Privative Clauses “The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of law and fact that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes.”

8. Privative Clauses “No decision, order, direction, declaration or ruling of the Board shall be questioned in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.”

9. Private Clauses and Jurisdictional Error Residual authority of superior courts to review for jurisdictional error?

10. Standard of Review “By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution.” Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9

11. Standard of Review “Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.” Dunsmuir

12. Reasonableness Standard Two, not three standards of review Reasonableness – a number of possible outcomes in tribunal’s decision Deference based on expertise/ experience of tribunal or agency Process reasonable? “justification, transparency and intelligibility”? Does “decision fall within a range of possible, acceptable outcomes”?

13. Correctness Standard Correctness standard applied to jurisdictional and some questions of law Promotes just decisions and avoids inconsistent and unauthorized application of law No deference to decision maker’s reasoning process Reviewing court undertakes its own analysis

14. Which Standard to Apply Privative clause? “Discrete and special administrative regime in which the decision maker has special expertise”? Is the law of “central importance to the legal system... and outside the... specialized area of expertise” of the decision maker?

15. Standard of Review applied to Environment Interpretation of CEAA, as questions of law reviewable on correctness standard Issues relating to weighing significance of evidence and conclusions drawn from that evidence including significance of an environmental effect are reviewed on the standard of reasonableness Pembina Institute for App. Dev. v. Canada (AG) 2008 FC 302

16. Standard of Review applied to Environment Interpretation of CEAA, as questions of law reviewable on correctness standard Issues relating to weighing significance of evidence and conclusions drawn from that evidence including significance of an environmental effect are reviewed on the standard of reasonableness Pembina Institute for App. Dev. v. Canada (AG) 2008 FC 302

17. Standard of Review applied to Environment “completeness or quality of evidence” reviewable on reasonableness standard “rationale for the conclusions and recommendations of the Panel” relates to interpretation of... CEAA thus is a question of law, reviewable on a standard of correctness. Panel failed to provide rationale for recommendations on GHG emissions

18. Administrative Law and Judicial Review Common grounds for judicial review –decisions outside statutory powers –failing to consider relevant considerations or considering irrelevant considerations –unlawful fettering of discretion –real or apprehended bias –breach of procedural fairness rules –exercising discretion for improper purpose or in bad faith –unlawful subdelegation of discretionary power

19. Administrative Law and Judicial Review Procedural Fairness: –nature of the decision to be made –relationship between decision maker and individual –effect of the decision on individual's rights –Generally, fairness requires, at a minimum, notice before a final decision is made and an opportunity to be heard.

20. Concluding Thoughts Judicial Review: Overtaken prosecutions, civil actions and appeals as key forum for challenging corporate and government decision-making ? Why? Easier to achieve public interest standing?