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Appeal-Judicial Review - Fairness and Legislative/Regulatory Proceedings

. Wang v. The Ministry of Citizenship and Immigration of Ontario

In Wang v. The Ministry of Citizenship and Immigration of Ontario (Div Ct, 2020) the Divisional Court cited on the reduced level of procedural fairness in governmental policy decisions:
[53] In Martineau v. Matsqui Institution, 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602, [1979] SCJ No 121, at pp.628-629, the Court held:
“A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards. Between the judicial decisions and those which are discretionary and policy-oriented will be found a myriad decision-making processes with a flexible gradation of procedural fairness through the administrative spectrum. That is what emerges from the decision of this Court in Nicholson. In these cases, an applicant may obtain certiorari to enforce a breach of the duty of procedural fairness.”
. Canada Christian College and School of Graduate Theological Studies v. Postsecondary Education Quality Assessment Board

In Canada Christian College and School of Graduate Theological Studies v. Postsecondary Education Quality Assessment Board (Div Ct, 2022) the Divisional Court considered an issue of procedural fairness in the context of cabinet proclaiming legislation:
[86] In Reference Re Canada Assistance Plan (BC), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525 at p. 558, the Supreme Court of Canada confirmed the following:
A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.
[87] The decision about whether to proclaim legislation into force is a legislative function exercised by the executive. It is also a decision based on grounds of public policy. Therefore, procedural fairness does not apply.
. Ontario Teacher Candidates’ Council v. The Queen

In Ontario Teacher Candidates’ Council v. The Queen (Div Ct, 2021) the Divisional Court considered whether the duty of procedural fairness applies in the legislative process:
Does Ontario Owe the Applicants a Duty of Procedural Fairness?

[158] The Applicants submit that the duty of procedural fairness was breached because the consultations with stakeholders did not include teacher candidates. The Applicants provide no case law to support a duty of procedural fairness in the context of professional certification requirements imposed by regulation.

[159] The case law clearly supports the conclusion that the duty of procedural fairness only accords participation rights in respect of certain administrative decisions that are not legislative in nature: Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks), 2021 ONSC 4521 (Div. Ct.), 157 O.R. (3d) 497, at para. 84. First, there is no duty of procedural fairness in respect of legislative processes. The government is under no obligation to provide participatory rights in the creation of an instrument mandated by regulation unless a statute so requires: Martineau v. Matsqui Institution (No. 2), 1979 CanLII 184 (SCC), [1980] 1 S.C.R. 602, at p. 628. Second, in the administrative law context, a right to consultation arises only when a legitimate expectation of consultation has been created by an unambiguous representation that a specific process will be followed: Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68. There is no such representation in the evidence here.

[160] Accordingly, while consultation with teacher candidates would have been desirable, there is no duty of procedural fairness owed in these circumstances.
. Covant v. College of Veterinarians of Ontario

In Covant v. College of Veterinarians of Ontario (Div Ct, 2021) the Divisional Court considered whether regulations, made by the College of Veterinarians [subject to Cabinet approval: s.7(1) Veterinarians Act] attracted a duty of procedural fairness - which it concluded they didn't. Interestingly paras 44-53 are essentially the court's argument that, even though the College did not owe such a duty, that they complied with it anyway:
[37] Dr. Covant takes the position that as a self-regulatory body, the College has a contractual relationship with its members, resulting in a duty of procedural fairness or natural justice, both at common law and under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), when making rules that affect its members. Dr. Covant submits that the College’s Council breached this duty by failing to provide its members with adequate notice and consultation regarding amendments to the General Regulation. Dr. Covant further submits that under the doctrine of legitimate expectations, he and other members had an expectation that they would receive notice and be consulted about amendments to the General Regulation, which would affect standards of practice, before such amendments were made.

[38] The College’s position is that the amendments to the General Regulation were properly enacted pursuant to its governing statute and that no duty of procedural fairness is owed in recommending and approving changes to the Regulation.

[39] Subsection 7(4) of the Veterinarians Act sets out the notice requirements where a regulation is made or amended, as follows:
(4) The Council shall,

(a) forward a copy of each regulation made under subsection (1) to each member of the College; and

(b) keep a copy of each regulation made under subsection (1) available for public inspection in the office of the College.
[40] Subsection 43(1) states that notice is sufficiently given if delivered personally or by mail.

[41] In my view, the panel correctly determined that the amendments to the General Regulation, including s. 33(2)(d), were properly enacted. The panel found that the College, in exercising its regulation-making function, did not owe Dr. Covant or its members, a duty of procedural fairness akin to the duty owed in a disciplinary proceeding. As long as the Council followed the statutory requirements of s. 7 of the Veterinarians Act, as addressed further below, the College was not required to take any additional steps to fulfil any common law or statutory duty of procedural fairness.

[42] As noted by the College, s. 3(2)(h) of the SPPA states that the Act does not apply to a proceeding “of a tribunal empowered to make regulations, rules or by-laws in so far as its power to make regulations, rules or by-laws is concerned.”

[43] In addition, the case law relied upon by the Appellant, both before the Discipline Committee and on appeal, does not support his position. In Chalmers v. Toronto Stock Exchange (1989), O.R. (2d) 532, 40 Admin. L.R. 311 (C.A.), the Ontario Court of Appeal held only that a tribunal’s discipline proceedings must comply with the SPPA. In McGill v. Brantford (City of) (1980), 1980 CanLII 1741 (ON SC), 28 O.R. (2d) 721, 111 D.L.R. (3d) 405(Div. Ct.), the court held that the SPPA did not apply to a council passing a by-law. Similarly, in Canadian Union of Public Employees v. Canada (Attorney General), 2018 FC 518, 49 Admin. L.R. (6th) 34, the Federal Court held that the regulation-making function did not engage the applicant’s procedural fairness rights.
. Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks)

In Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks) (Div Ct, 2021) the Divisional Court held that no procedural fairness duty applied so as to require prior notice of legislative or regulatory changes, as such fairness duty was administrative only:
Procedural Fairness and Legitimate Expectations

[83] The applicants argue that they had a legitimate expectation, arising from past practice and the Ministers’ duties under the EBR, that the Ministers would post the proposed amendments in Schedules 3, 6, 17, 19 and 20 and consult with the public. In the past, there had been consultation under the EBR before changes to the affected Acts were implemented, so they had reason to believe that the same would occur in this case.

[84] In effect, the applicants are arguing that there is a common law duty of procedural fairness that required public notice and a right to participate prior to the enactment of the impugned Schedules in Bill 197. However, no duty of procedural fairness at common law is owed to the applicants in respect of the legislative process. The duty of procedural fairness accords participation rights in respect of certain administrative decisions that are not legislative in nature. Neither the process for making regulations nor the enactment of legislation are subject to the rules of procedural fairness (see Reference Re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, at pp. 554-560; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at paras. 38, 68).

[85] In the alternative, even if the doctrine of legitimate expectations were to have application, it would require the applicants to show that the Ministers had made representations about the scope of an administrative process that they would follow. Here, there was no representation by the Ministers with respect to a particular process that would be followed. A decision to post pursuant to s. 15 of the EBR is an exercise of discretion that turns on the nature of a particular proposal and the assessment of the criteria in s. 15 and the factors to be considered in s. 14. The content of a posting is then determined in accordance with s. 27, and there is no requirement in that section to post a proposed bill in total.

[86] Accordingly, there has been no denial of procedural fairness in the process of enacting the impugned Schedules.


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