In Canada, federal, provincial and municipal governments delegate decision-making to administrative tribunals (“ATs”) such as boards, tribunals, and commissions. These ATs, through their statutory authority, provide regulatory schemes and provide consent for people/entities to carry on certain activities and allow for rules of operation for those activities. ATs are found in areas such as manufacturing, transportation (trucking, rail, and airline regulation) the Canadian Transportation Agency, municipal taxation, development approvals, business licensing, (municipal boards) environment approvals for certain development/activities, immigration, and food and drug regulation. Administrative Law is a significant area as ATs regulate social and economic aspects of society. These specialized AT procedures and decisions are subject to review by the courts. This law concerns the manner in which courts can review the decisions of an AT. The court reviews include a review of legitimate expectations, duty of fairness, bias, and independence.  

Legitimate expectations: The law requires an AT to follow their promises for certain procedures. ATs should act fairly and should implement their promise, so long as implementation does not breach their statutory duty. In this way, the courts have found procedural fairness through a promise by an AT if they did not follow the promised procedure. 

Duty of Fairness: The common law in Canada imposes a minimum duty of fairness in AT proceedings. This duty is only found with administrative or quasi-judicial decisions by an AT. Legislative decisions and broad policy issues rather than issues of law will not invoke a duty of fairness. The relationship between the AT must be such that it has exercised its power under a statute. Finally, the decision must affect an individual’s or corporate body’s rights.

Apprehension/Appearance of Bias: ATs must be free from an appearance of bias. A reasonable person must be satisfied that an administrative decision-maker is appropriately free of influences that would interfere with their ability to make impartial decisions. 

These are only a few grounds of review and this involving area of the law is complex, requiring a thorough understanding of these standard of review exercised by courts. Please contact one of our lawyers should you be required to present or appear before a tribunal. 

Team members specializing in administrative and regulatory law:

• Orvel L. Currie
• Brian J. Meronek, K.C.
• Jeremy W. McKay
• Dona-Lynn Morley