Instructions Specific to This Exam

1. This examination contains four questions worth a total of 100 marks. Each question is worth 25 marks.

2. A suggested time of 45 minutes per question is provided. Candidates remain responsible for managing their own examination time.

3. You will be assessed primarily on your knowledge of the principles, cases and other assigned materials in the Canadian Administrative Law syllabus, together with your ability to identify the legal issues raised by the facts, apply the governing principles and assess the competing arguments.

4. No marks are awarded for merely reproducing or summarizing the facts. Deploy the relevant facts in your legal analysis.

5. Each question is independent. Do not import facts from one question into another.

6. Where procedural fairness is alleged, distinguish:

   • whether a procedural obligation is triggered;

   • the source of that obligation;

   • the content of the obligation; and

   • whether the procedure actually followed satisfied it.

7. Do not assume that every administrative decision attracts the same procedural protections. Consider, where relevant:

   • the legislative or individualized nature of the decision;

   • whether a decision is preliminary or final;

   • emergency circumstances;

   • the statutory scheme; and

   • the practical effect of the decision on the affected person.

8. When determining the content of common-law procedural fairness, use the contextual approach reflected in Baker. Do not merely provide a generic list of procedural entitlements.

9. Distinguish allegations of:

   • individual bias;

   • institutional independence;

   • improper institutional consultation;

   • subdelegation; and

   • interference with the principle that the person or panel hearing the matter must actually decide it.

10. For substantive judicial review, apply the framework established in Canada (Minister of Citizenship and Immigration) v. Vavilov. Do not use the superseded contextual standard-of-review analysis associated with Dunsmuir and earlier jurisprudence.

11. Where an administrative decision exercises statutory discretion in a manner that limits a Charter protection, consider the administrative-law framework associated with Doré v. Barreau du Québec rather than automatically applying ordinary constitutional-review methodology.

12. Distinguish:

• an administrative appeal or reconsideration mechanism;

• a statutory appeal to a court; and

• judicial review.

13. Where judicial review is sought, consider where relevant:

• standing;

• prematurity;

• exhaustion of adequate alternative remedies;

• the appropriate reviewing court;

• the standard of review; and

• the discretionary nature of judicial-review remedies.

14. Where a reviewable error is established, do not assume that the court should itself make the administrative decision. Consider whether the decision should ordinarily be set aside and remitted to the authorized decision-maker.

15. Unless the facts require otherwise, do not address constitutional division of powers, tort liability of public authorities, damages against the Crown or the substantive merits of any underlying commercial dispute.

16. Write clear and organized answers in complete sentences.

QUESTION ONE

25 marks — suggested time: 45 minutes

FACTS

Alderwick Cultures Ltd. (“Alderwick”) operates a large commercial food-fermentation facility in Ontario.

It produces refrigerated cultured foods that are distributed to grocery stores across Canada.

A provincial regulator administers a licensing system for facilities of Alderwick’s type.

The governing legislation authorizes the responsible Food Safety Director to suspend a facility’s operating licence where the Director has reasonable grounds to believe that continued operation creates an immediate and serious risk to public health.

The legislation requires the Director to provide written reasons for any individual suspension within 48 hours.

It does not expressly state whether the operator must be heard before or after the suspension.

A separate provision allows the Minister to issue temporary emergency orders governing classes of licensed facilities where the Minister considers such measures reasonably necessary to respond to an urgent food-safety threat.

In March, health officials detected a rare strain of bacteria in several refrigerated food products sold in Ontario.

The source was initially unknown.

Four illnesses required hospitalization.

No deaths occurred.

The Minister issued an emergency order applying to all 17 licensed commercial fermentation facilities in two designated health regions.

For 14 days, each facility was required to:

• suspend distribution of newly manufactured refrigerated products;

• retain samples from every production batch; and

• complete additional microbiological testing before resuming ordinary distribution.

No facility received advance notice or an opportunity to make submissions.

The order stated that:

“Immediate uniform measures are necessary while the source of the outbreak is investigated.”

Alderwick estimates that compliance cost it approximately $420,000.

It argues that the Minister was required to hear from the affected facilities because only 17 businesses were subject to the order and each suffered significant economic consequences.

Nine days later, investigators traced one contaminated retail product to a production batch manufactured at Alderwick.

An inspector attended Alderwick.

She found that the batch had been processed on a line where a temperature-recording device had malfunctioned intermittently.

Alderwick had already repaired the device.

The inspector also discovered that three employees had occasionally completed temperature logs from memory several hours after production.

There was no evidence that any employee deliberately falsified a reading.

The inspector prepared a report recommending:

“temporary suspension pending a full technical investigation.”

The report also included:

• laboratory evidence linking the retail product to the outbreak;

• statements from two Alderwick employees;

• a photograph of the malfunctioning temperature device; and

• an anonymous allegation that supervisors sometimes encouraged workers to “fix the paperwork later.”

The anonymous allegation was unverified.

The Director received the report on a Monday.

He did not immediately suspend Alderwick.

Instead, his office spent the next nine days obtaining legal advice and reviewing historical inspection records.

Alderwick was not told that an individual suspension was being considered.

On the tenth day, the Director issued an order suspending Alderwick’s operating licence:

“pending completion of the investigation and until the Director is satisfied that adequate corrective measures are in place.”

His reasons relied on:

• the contaminated batch;

• the employee statements;

• the faulty temperature device;

• the anonymous allegation; and

• two minor record-keeping deficiencies found during inspections three years earlier.

Alderwick had not been shown the anonymous allegation or the historical inspection material.

The suspension immediately shut down the facility.

Approximately 180 employees were sent home.

The legislation permits Alderwick to request review by an independent administrative tribunal.

A review is not automatic.

The operator must initiate it.

The tribunal may confirm, vary or rescind the suspension and may receive fresh evidence.

Its current scheduling delay is approximately six to eight weeks.

Alderwick immediately requested review.

It also asked the Director to reconsider the suspension after providing Alderwick with the adverse material.

The Director refused, stating:

“The tribunal process is your opportunity to respond. My order was only an interim protective decision.”

Alderwick argues that the Director was required to provide an opportunity to respond before shutting the facility.

The Director says that:

• public-health protection justified immediate action;

• his decision was merely interim;

• a full tribunal review is available; and

• advance participation would undermine the preventive purpose of the suspension power.

Alderwick seeks advice concerning both the Minister’s regional emergency order and the Director’s individual suspension.

QUESTION

Advise Alderwick on whether procedural fairness applied to the Minister’s emergency order and the Director’s licence suspension, the content of any procedural obligations that arose, and the strength of Alderwick’s challenge to the procedures followed.

25 MARKS

THE BRICKAM EXPLANATION — QUESTION ONE

1. The Two Decisions Must Be Analyzed Separately

Alderwick should not treat the Minister’s regional emergency order and the Director’s individual licence suspension as though they attract identical procedural obligations.

The decisions differ substantially in:

• their generality;

• their purpose;

• the number of affected persons;

• their duration;

• the degree to which they focus on Alderwick individually; and

• the consequences that follow.

The threshold question in each case is whether procedural fairness is triggered at all.

Only then does the analysis move to content.

The Minister’s Emergency Order

2. Common-Law Procedural Fairness Is Less Readily Triggered by Legislative Decisions

The common-law duty of procedural fairness generally attaches most naturally to administrative decisions directed at identifiable individuals or relatively particular interests.

At the other end of the spectrum are decisions that are legislative in nature.

The syllabus cautions that “legislative” is not confined to formal regulations.

A decision may also be legislative in character where it establishes a rule of sufficiently general application rather than adjudicating the position of particular persons.

Ordinarily, common-law procedural fairness is not triggered in the same way for such decisions.

3. The Order Has Significant Legislative Characteristics

The Minister did not investigate Alderwick and decide that Alderwick itself was unsafe.

The order:

• applied prospectively;

• applied according to a defined category;

• imposed the same temporary requirements on all affected facilities; and

• formed part of a general response to an outbreak whose source was then unknown.

Those features support characterization as legislative or policy-like rather than individualized adjudication.

4. The Small Number of Affected Businesses Gives Alderwick a Counterargument

Alderwick will emphasize that only 17 facilities were affected.

The practical impact was therefore concentrated on a relatively small and readily identifiable class.

That makes the case less obvious than a province-wide regulation applying to thousands of businesses.

But numerosity is not determinative.

The more important question is the nature of the decision.

The Minister was establishing a common emergency regime for a category of regulated facilities rather than determining whether any particular facility had committed misconduct.

On balance, the order remains strongly legislative in character.

5. The Emergency Context Further Weakens a Claim to Advance Participation

Even where fairness might otherwise arise, emergency circumstances can alter what procedure is practicable.

The outbreak had already caused hospitalizations.

Its source was unknown.

The measure lasted only 14 days and was intended to preserve evidence and prevent further distribution while officials investigated.

Requiring the Minister to consult each affected facility before imposing uniform temporary measures could undermine the protective purpose of the power.

Alderwick therefore has a weak claim to an advance hearing concerning the regional order.

6. Economic Importance Alone Does Not Create a Hearing Right

The $420,000 cost is relevant to the practical significance of the order.

It does not, by itself, transform a general emergency decision into individualized adjudication.

Administrative law does not provide a right to pre-decision participation whenever government action has serious financial consequences.

The nature and source of the decision-making power still matter.

7. Statutory Procedural Requirements Would Still Control

The conclusion that common-law procedural fairness is weak or absent does not mean the Minister may ignore the governing legislation.

If the enabling statute imposed:

• notice;

• publication;

• consultation; or

• other procedural requirements,

those requirements would have to be followed.

The supplied facts identify no such unmet statutory requirement.

The stronger challenge therefore concerns the later individual suspension.

The Director’s Suspension

8. The Individual Licence Suspension Is a Classic Candidate for Procedural Fairness

The Director’s decision:

• targeted Alderwick alone;

• directly affected an existing operating licence;

• immediately shut down a substantial business;

• affected 180 employees; and

• remained operative for an uncertain period.

This is far removed from the Minister’s general emergency order.

Under the common-law trigger discussed in the Knight materials, there is a strong basis for concluding that Alderwick was owed procedural fairness.

9. Calling the Order “Interim” Does Not Determine the Trigger

The Director argues that his order was preliminary because a tribunal review remained available.

Administrative law does distinguish between:

• recommendations or genuinely preliminary steps; and

• decisions that finally affect a person’s interests.

But labels are not conclusive.

The Director’s order itself:

• had immediate legal effect;

• closed the facility;

• remained in force unless Alderwick initiated further proceedings; and

• could operate for six to eight weeks before tribunal review.

Its practical effect is substantial.

This weighs strongly in favour of a fairness obligation at the Director stage.

10. The Later Tribunal Review Is Relevant but Does Not Necessarily Eliminate Earlier Fairness

The availability of an independent review can influence the amount of process required initially.

A comprehensive de novo or merits review may justify a less elaborate first-instance process.

But Alderwick bears major consequences during the period before the review occurs.

The tribunal process is also not automatic.

Alderwick must initiate it.

Accordingly, the existence of a later review reduces the argument for a highly elaborate initial hearing but does not convincingly establish that the Director owed no fairness at all.

Content Under Baker

11. The Content of Fairness Is Contextual

Once fairness is triggered, the question is not simply:

“Was there a hearing?”

The content depends upon the circumstances.

The Baker considerations point in different directions.

Relevant considerations include:

• the nature of the decision;

• the statutory scheme;

• the importance of the decision to Alderwick;

• any legitimate procedural expectations;

• and the decision-maker’s procedural choices and institutional context.

12. The Importance of the Decision Supports Meaningful Participation

Suspension shut down Alderwick’s entire operation.

The consequence was far more serious than:

• an administrative warning;

• a modest penalty; or

• a request for additional documentation.

The impact therefore supports meaningful procedural protection.

13. The Public-Health Context Supports Speed and Flexibility

The Director was exercising preventive safety powers.

Administrative law should not impose a procedure that prevents a regulator from acting quickly where delay itself could cause serious harm.

That consideration favours a less elaborate process than would be required in an ordinary disciplinary proceeding.

It may justify immediate action where the evidence genuinely indicates an urgent danger.

14. The Director’s Own Nine-Day Delay Weakens the Urgency Argument

This fact is particularly important.

The Director did not receive the report and suspend Alderwick the same afternoon.

His office took nine days to:

• obtain legal advice;

• review records; and

• deliberate.

That conduct suggests there was at least some opportunity to provide Alderwick with:

• notice of the contemplated suspension;

• the essential adverse allegations; and

• a short written opportunity to respond.

A regulator cannot rely heavily on emergency necessity while itself taking substantial time before acting.

15. Alderwick Was Entitled to Know the Substance of the Case It Had to Meet

A meaningful opportunity to respond usually requires sufficient disclosure of the material allegations.

The anonymous accusation was potentially important because it suggested that deficient record keeping reflected an institutional practice rather than isolated mistakes.

Alderwick was never told about it.

The Director also relied upon three-year-old inspection deficiencies that Alderwick did not know were part of the present case.

If those materials materially influenced the suspension, procedural fairness strongly favoured disclosure of their substance.

16. The Anonymous Source Did Not Necessarily Have to Be Identified

Disclosure does not automatically mean Alderwick was entitled to know the identity of an anonymous source.

Legitimate regulatory concerns may justify protecting an informant.

But protecting identity is different from withholding the substance of the allegation altogether.

Alderwick could potentially have been told:

regulators had received an allegation that supervisors encouraged retrospective completion of records

without identifying the source.

That would permit a response while preserving anonymity.

17. An Oral Hearing Was Probably Not Required Before Suspension

Alderwick’s strongest procedural case should not be overstated.

The circumstances did not necessarily require:

• viva voce testimony;

• cross-examination;

• formal discovery; or

• a trial-like hearing.

A short written process may have been sufficient.

For example, the Director could have:

1. given Alderwick the essential allegations;

2. stated that suspension was being considered;

3. provided a short deadline for written submissions and corrective evidence; and

4. then decided whether immediate suspension remained necessary.

18. A Truly Immediate Risk Could Justify Action First and Hearing Later

If the Director reasonably believed that even a short delay posed a serious public-health risk, immediate suspension could potentially occur before participation.

But fairness might then require a prompt post-suspension opportunity to respond or seek reconsideration.

Here the Director refused reconsideration entirely and directed Alderwick to a tribunal process six to eight weeks away.

That weakens the procedural position further.

19. The Written Reasons Requirement Was Satisfied in Form but Does Not Cure Lack of Participation

The Director did provide reasons identifying the material relied upon.

That is important.

But reasons given after a decision do not retrospectively provide the affected person with an opportunity to influence the decision before or immediately after it.

Reasons and participation perform different procedural functions.

20. The Strongest Conclusion

Alderwick’s challenge to the regional emergency order is comparatively weak.

That order was general, temporary and emergency-oriented.

Its challenge to the individual suspension is substantially stronger.

Fairness was likely triggered, and the Director’s nine-day deliberation period makes it difficult to justify providing Alderwick with no meaningful opportunity to address significant adverse information.

A court could find that a short, expedited written process—or at minimum a prompt post-suspension reconsideration—was required.

Brickam’s Suggested Marking Approach — Question One

Issue	Marks
Distinction between the two decisions and need to analyze the fairness trigger separately	2
Legislative/general character of Minister’s regional order; effect of small affected class and emergency context	5
Trigger of procedural fairness for Alderwick’s individualized licence suspension; significance of “interim” characterization and later review	6
Application of Baker to content: nature of decision, statutory scheme, importance and regulatory context	4
Disclosure and opportunity to respond; anonymous allegation and historical inspection material	4
Effect of nine-day delay, urgency argument and possibility of expedited or post-decision process	3
Overall conclusions	1
TOTAL	25

QUESTION TWO

25 marks — suggested time: 45 minutes

FACTS

Nadine Verhoeven is a licensed building engineer.

A provincial professional discipline tribunal commenced proceedings against her after the partial collapse of a commercial parking structure she had inspected.

No one was physically injured.

The tribunal’s governing legislation provides for disciplinary hearings before panels of three members selected by the Tribunal President.

Tribunal members are appointed by the provincial Cabinet for renewable one-year terms.

The legislation expressly provides that the Minister responsible for the tribunal may issue:

“general written directives concerning administrative priorities and the consistent exercise of the Tribunal’s statutory functions.”

A directive may not instruct the tribunal how to decide a named individual case.

The statute also provides that the Tribunal President may:

• assign members to hearing panels;

• establish internal procedures designed to promote consistency; and

• circulate summaries of tribunal jurisprudence.

Nadine argues that the tribunal is institutionally incapable of deciding her case fairly because members depend upon the government for annual reappointment.

She also notes that the Minister recently issued a directive stating:

“Professional discipline bodies should give particular attention to maintaining public confidence where negligent infrastructure inspection creates a risk to public safety.”

The directive does not mention Nadine.

The hearing was conducted by:

• Chair Liora Penn;

• Marcus Elveden; and

• Dr. Benoît Caron.

Six months before the hearing, Liora spoke at a construction-safety conference.

During a panel discussion concerning several unrelated structural failures, she said:

“For too long, professional regulators have treated careless inspection as paperwork misconduct. Engineers who repeatedly sign off on unsafe structures should expect to lose the privilege of practising.”

At the time, Nadine’s case had been reported in the media but had not yet been referred to a tribunal hearing.

When asked by an audience member whether her comments included Nadine’s case, Liora replied:

“I will not discuss any matter that may come before me.”

Nadine learned of the speech only after her hearing concluded.

Marcus owns approximately $18,000 in publicly traded shares of Stonebridge Engineering Group, one of Nadine’s competitors.

Stonebridge was not involved in the parking structure.

It has no direct financial interest in the discipline proceeding.

Marcus disclosed the investment to the Tribunal President before the hearing but not to Nadine.

The President decided that the holding was:

“too remote to create a meaningful conflict.”

The three-member panel heard five days of evidence and reserved its decision.

Liora prepared a draft concluding that Nadine had breached professional standards but that a reprimand and mandatory retraining were sufficient.

Before issuing the decision, the panel participated in a monthly Tribunal Consistency Meeting attended by all 21 tribunal members.

The facts of Nadine’s case were discussed in detail.

Members who had not heard the evidence were given Liora’s draft reasons.

Several said that a reprimand would be inconsistent with recent tribunal policy.

The Tribunal President stated:

“If this panel imposes no suspension after a structural collapse, every other panel will have to explain why our sanctions mean anything.”

At the President’s request, the members present then took a non-binding show-of-hands vote.

Seventeen members favoured a suspension of at least one year.

The three panel members met privately afterward.

Benoît objected to changing the sanction.

Marcus said:

“We cannot ignore where the institution is going.”

The panel ultimately issued a 12-month suspension.

Its reasons were substantially rewritten after the consistency meeting.

They did not disclose:

• the meeting;

• the other members’ comments; or

• the informal vote.

The decision was sent to the Tribunal President.

Under the tribunal’s normal administrative practice, the President signed the final page beneath the words:

“Issued on behalf of the Tribunal.”

The President had not sat on the hearing panel.

Nadine seeks judicial review.

She argues that:

1. the tribunal is not sufficiently independent;

2. Liora was biased;

3. Marcus was biased because of his investment;

4. the consistency meeting improperly transferred the decision to people who never heard the case; and

5. the President had no authority to sign a decision in a proceeding she did not hear.

QUESTION

Advise Nadine on the procedural-fairness issues arising from the composition and operation of the tribunal and the strength of the grounds on which she seeks judicial review.

25 MARKS

THE BRICKAM EXPLANATION — QUESTION TWO

1. Nadine Raises Several Distinct Doctrines

Her arguments should not be compressed into a generic allegation that:

“the tribunal was unfair.”

She challenges:

• institutional independence;

• individual prejudgment;

• a financial interest;

• institutional consultation;

• the identity of the actual decision-maker; and

• possible subdelegation.

Each must be analyzed separately.

Institutional Independence

2. Common-Law Fairness Cannot Simply Rewrite an Express Statutory Structure

Nadine objects to renewable one-year appointments.

That may raise a concern about security of tenure.

But the governing legislation itself creates the appointment structure.

The syllabus expressly warns against assuming that common-law procedural fairness can invalidate institutional arrangements chosen by legislation.

Common law cannot override clear statutory direction.

A challenge to an institutional structure expressly created by statute ordinarily requires some superior constitutional or quasi-constitutional source if the legislature has clearly authorized the arrangement.

3. Charter Section 7 Is Not Obviously Engaged

Nadine’s professional livelihood is important.

But Charter s. 7 does not generally constitutionalize every administrative decision affecting economic interests or a person’s ability to practise a profession.

The supplied facts do not identify:

• imprisonment;

• physical liberty;

• bodily integrity; or

• comparable life, liberty or security-of-person interests.

Her ability to use s. 7 as a source of constitutionally required institutional independence is therefore doubtful.

4. The Canadian Bill of Rights Does Not Solve the Problem

The tribunal is provincial.

The Canadian Bill of Rights constrains federal law and federal decision-making.

It does not provide the source of procedural rights against this provincial tribunal.

Nadine’s broad structural attack based solely on annual appointments is therefore weak on the supplied facts.

The Ministerial Directive

5. The Directive Is General Rather Than Case-Specific

The statute expressly authorizes general directives concerning administrative priorities and consistency.

The Minister did not direct:

“Suspend Nadine Verhoeven.”

The direction speaks generally about public confidence in professional discipline involving infrastructure safety.

That falls much closer to the authority the legislature expressly contemplated.

6. The Directive Does Not Eliminate the Tribunal’s Duty to Decide Independently

Statutory authorization for general policy direction does not mean individual panels may abandon their adjudicative function.

The panel must still apply the governing law to the evidence in Nadine’s own case.

If the directive were treated as requiring a predetermined sanction regardless of the evidence, a separate concern could arise.

The facts do not establish that the Minister itself dictated Nadine’s result.

The more serious institutional influence came from within the tribunal.

Liora’s Public Statements

7. The Governing Question Is Whether the Circumstances Create a Reasonable Apprehension of Bias

The decision-maker need not admit actual prejudice.

Procedural fairness asks whether the circumstances would cause the appropriately informed and reasonable observer to apprehend that the decision-maker might not decide the matter impartially.

Context matters.

The standard is particularly important in an adjudicative professional-discipline proceeding.

8. Liora’s Statement Is Concerning but Not Conclusive

Her statement was forceful:

engineers who repeatedly sign off on unsafe structures should expect to lose the privilege of practising.

Nadine’s case involved structural safety and was already publicly known.

That creates an arguable appearance that Liora had formed a strong view about the appropriate sanction in this category of case.

9. Important Features Also Support Liora

She did not name Nadine.

Her comments referred to:

“repeatedly”

unsafe sign-offs.

Whether Nadine had engaged in repeated conduct still had to be determined.

When directly asked about Nadine, Liora refused to comment.

Administrative decision-makers and tribunal members are not necessarily prohibited from having:

• policy views;

• professional experience; or

• opinions about the seriousness of conduct within their mandate.

The question is whether they have closed their minds to the case before them.

Liora’s conduct therefore creates a substantial but genuinely contestable bias argument.

Marcus’s Shares

10. Financial Interests Require Careful Analysis

Marcus owns shares in a corporation operating in the same industry as Nadine.

A pecuniary interest may create particularly serious impartiality concerns.

But the connection here is indirect.

Stonebridge:

• was not a complainant;

• had no role in the parking structure;

• would receive no money from the proceeding; and

• is one competitor among potentially many.

11. The Investment Is Not Necessarily Sufficient to Establish Bias

Nadine can argue that suspension removes a competitor from the market and might indirectly benefit Stonebridge.

The tribunal will respond that an $18,000 investment in a publicly traded company gives Marcus no meaningful personal stake in the result of one disciplinary case.

The financial connection is therefore materially weaker than direct ownership of a party to the proceeding.

12. Failure to Disclose to Nadine Is Still Unhelpful

The Tribunal President considered the investment internally but Nadine did not know about it.

Disclosure would have allowed her to make an informed objection before the hearing.

That omission does not itself prove bias.

But it removes the possibility that the concern could have been addressed transparently at the outset and may reinforce Nadine’s fairness complaint.

Institutional Consultation

13. Consultation Among Tribunal Members Is Not Inherently Improper

Large administrative bodies have a legitimate interest in decisional consistency.

Institutional consultation can therefore be permissible.

A categorical rule prohibiting hearing panels from discussing legal principles or general policy with colleagues would make coherent administration difficult.

The critical question is how the consultation occurred.

14. The Hearing Panel Must Retain the Actual Decision

The panel that heard the evidence must remain responsible for deciding the case.

Consultation cannot become a disguised vote by the entire tribunal.

Here, 18 non-panel members:

• received draft reasons;

• discussed Nadine’s actual facts;

• criticized the proposed sanction; and

• participated in an informal vote concerning the appropriate outcome.

That goes well beyond circulation of jurisprudence or discussion of general legal principles.

15. The President’s Comments Create Particularly Serious Pressure

The President stated:

“If this panel imposes no suspension ... every other panel will have to explain why our sanctions mean anything.”

The comment directly linked institutional expectations to the result in Nadine’s case.

Marcus then said:

“We cannot ignore where the institution is going.”

The eventual decision moved from:

• reprimand and training

to:

• a 12-month suspension.

That sequence provides substantial evidence that the panel’s independent judgment was displaced or materially constrained.

16. The Non-Binding Label Does Not Resolve the Problem

The tribunal will stress that the show-of-hands vote was formally non-binding.

That is relevant.

But administrative law examines substance.

An institutional vote on the appropriate outcome of a named pending case can exert powerful pressure even without formal legal force.

The fact that the original draft changed in the direction overwhelmingly favoured by non-panel members strengthens Nadine’s argument.

17. New Evidence Would Have Created an Additional Hearing Problem

The facts do not indicate that the consistency meeting introduced new evidence.

Had non-panel members supplied new factual information that influenced the result, fairness would ordinarily require Nadine to have a meaningful opportunity to respond.

Here the central defect is different:

individuals who did not hear the evidence exerted substantial influence over the adjudicative result.

Who Heard Must Decide

18. The Principle Is Directly Engaged

Where an adjudicative hearing is conducted by a designated panel, the responsibility for deciding generally belongs to that panel.

The principle protects the connection between:

• hearing the parties;

• evaluating the record; and

• making the decision.

The consistency meeting raises concern because the actual sanction may have been shaped by people who never heard Nadine’s case.

19. The President’s Signature Must Be Understood Functionally

Nadine argues that the President could not sign the decision because she did not hear the case.

A signature alone is not necessarily fatal.

If the President merely performed an administrative act authenticating a decision genuinely made by the three-member panel, there may be no improper delegation.

The critical question is who actually decided.

20. The Surrounding Facts Make the Signature More Concerning Than It Would Be in Isolation

The President did not merely sign a document after staying outside the merits.

She:

• participated in the consistency meeting;

• criticized the proposed sanction;

• requested an informal vote; and

• expressed a clear institutional view about the appropriate outcome.

Against that background, her signature may reinforce an argument that she assumed an impermissible adjudicative role.

Still, the signature itself should not be treated as conclusive proof.

Remedy

21. The Institutional Consultation Ground Is Nadine’s Strongest Claim

Her broad independence challenge is weak because it attacks arrangements expressly created by statute without an obvious constitutional source.

The Marcus argument is arguable but comparatively weak.

Liora’s public statements create a serious individual-bias issue.

The strongest ground, however, is the consistency process.

The combination of:

• detailed discussion by non-hearers;

• circulation of draft reasons;

• the President’s pressure;

• a tribunal-wide vote; and

• a substantial change in sanction

creates a strong argument that the hearing panel did not independently decide the matter.

22. A New Hearing Before a Differently Constituted Panel Is the Natural Remedy

If a court concludes that the process created bias or improperly displaced the hearing panel’s adjudicative responsibility, the ordinary response would be to set aside the decision.

Because the defect concerns impartial adjudication, remitting the matter to the same compromised panel may be inappropriate.

A new hearing before a properly constituted panel would ordinarily be the more suitable course.

Brickam’s Suggested Marking Approach — Question Two

Issue	Marks
Distinguishing institutional independence, bias, consultation and subdelegation issues	2
Institutional independence; statutory structure; limits of common law; Charter s. 7 and Bill of Rights considerations	5
Effect of Minister’s general directive and distinction between authorized policy direction and case-specific control	2
Liora’s comments and reasonable-apprehension-of-bias analysis	4
Marcus’s financial interest and non-disclosure	3
Permissible institutional consultation versus effective institutional decision-making by non-hearers	5
“Who hears must decide,” President’s involvement and significance of her signature	3
Remedy and overall conclusion	1
TOTAL	25

QUESTION THREE

25 marks — suggested time: 45 minutes

FACTS

Mira Halden is a licensed professional engineer.

For 12 years she worked in transportation-infrastructure design.

She now operates an independent consulting practice.

A provincial engineering regulator has statutory authority to discipline a licensee for professional misconduct and, where misconduct is established, may impose any of the following:

• a reprimand;

• mandatory education;

• restrictions on practice;

• a monetary penalty;

• suspension; or

• revocation of the licence.

The governing legislation states that the regulator must:

“protect the public interest and maintain public confidence in the integrity and competence of the engineering profession.”

Mira became concerned about a major publicly funded highway interchange.

She had no professional role in designing or approving the project.

Using publicly available engineering reports and government data, she concluded that projected traffic volumes had been overstated.

She published a 28-minute video under the title:

Why the Northgate Interchange Numbers Do Not Add Up

In the video, Mira identified herself as:

“a licensed professional engineer with experience in transportation systems.”

She stated that:

“Officials appear determined to sell the public a $900 million interchange using assumptions that no competent transportation engineer should accept without serious questioning.”

She also said:

“Somebody inside the approval process either did not understand the model or chose not to ask uncomfortable questions.”

She encouraged members of the public to:

“demand the underlying modelling files before another dollar is spent.”

The video was viewed approximately 700,000 times.

Several news organizations interviewed Mira.

Government engineers publicly defended the project.

A later independent review concluded that Mira had correctly identified two significant weaknesses in the traffic model.

However, it also found that one chart in her video compared data collected using different methodologies and therefore overstated the apparent discrepancy.

The review found no evidence that Mira knew the chart was misleading.

A complaint was filed with the engineering regulator.

The discipline panel accepted that:

• Mira genuinely believed her concerns;

• she disclosed no confidential information;

• she had identified genuine weaknesses in the modelling; and

• she did not deliberately make a false statement.

The panel nevertheless found professional misconduct.

Its reasons stated:

“Members of a self-regulating profession hold a privileged position. Public accusations that government engineering work may be incompetent or deliberately unquestioning can undermine confidence in both public infrastructure and the profession itself.”

The panel referred to freedom of expression in one paragraph:

“The Panel recognizes that Mira Halden has expressive rights. Those rights must be exercised responsibly by regulated professionals and do not immunize a licensee from professional discipline.”

The panel did not otherwise analyze:

• the public importance of the subject;

• the fact that portions of Mira’s critique were correct;

• whether the speech occurred in her professional practice;

• the absence of intentional falsehood;

• or less serious sanctions.

It suspended Mira’s licence for 18 months.

The reasons state:

“A substantial suspension is necessary to send a clear message that professional status must not be used to undermine public confidence in major infrastructure.”

The legislation contains no statutory right of appeal.

Mira applies for judicial review.

She argues that the decision unjustifiably limits her freedom of expression under s. 2(b) of the Charter.

The regulator responds that:

• professional regulation necessarily constrains speech;

• Mira deliberately relied on her professional credentials to increase the authority of her criticism;

• the panel’s statutory mandate includes protecting public confidence; and

• the court must defer to the regulator’s judgment concerning professional standards.

Mira asks the court to quash the suspension and substitute a finding that no discipline may be imposed for the video.

QUESTION

Advise Mira on the standard and framework a reviewing court should apply, whether the regulator’s decision is likely to survive review, and the appropriate remedy if the court finds the decision unreasonable.

25 MARKS

THE BRICKAM EXPLANATION — QUESTION THREE

1. This Is an Administrative Exercise of Discretion That Engages a Charter Protection

Mira is not principally arguing that the disciplinary statute itself is unconstitutional.

She challenges the way a statutory disciplinary discretion was exercised against her because of expression.

That distinction matters.

The applicable administrative-law framework is the one associated with Doré and subsequent administrative Charter jurisprudence.

2. The Court Does Not Automatically Apply Correctness Merely Because the Charter Is Engaged

Under Vavilov, reasonableness is generally the presumptive standard on judicial review unless an established correctness category applies.

The administrative Charter context addressed in Doré operates through reasonableness review.

The reviewing court therefore does not simply ask what sanction it would itself have imposed.

3. Doré Requires a Proportionate Balancing

Where statutory discretion engages a Charter protection, the administrative decision-maker must meaningfully account for:

• the relevant Charter protection; and

• the statutory objectives the decision-maker is charged with pursuing.

The result must reflect a proportionate balance.

In practical terms, the question is whether the decision limits the Charter protection no more than is reasonably necessary in light of the statutory mandate.

4. Mira’s Freedom of Expression Is Clearly Engaged

Her video communicated views concerning:

• public expenditure;

• engineering methodology;

• government decision-making; and

• public infrastructure.

Those are plainly expressive activities.

The fact that she identified herself as an engineer does not remove the speech from s. 2(b).

It does, however, make her professional status relevant to the regulator’s statutory concerns.

5. The Regulator Has a Legitimate Statutory Objective

The regulator is charged with:

• public protection; and

• maintaining confidence in the integrity and competence of the profession.

Professional regulators may legitimately respond to conduct by licensees that undermines those objectives.

Mira therefore cannot succeed merely by saying:

“My speech is protected, so the regulator had no jurisdiction to discipline me.”

The real issue is proportionality.

6. Professional Status Strengthens the Regulator’s Side of the Balance

Mira deliberately invoked her credentials.

She did not present herself merely as:

“a concerned citizen.”

Her status as a professional engineer gave her criticism additional public authority.

The regulator can legitimately consider whether a licensee uses professional status in a manner that:

• misleads the public;

• damages confidence in professional competence; or

• seriously departs from professional standards.

7. But the Public-Interest Nature of the Expression Strongly Favours Mira

The speech concerned a $900 million public project.

It raised questions about:

• technical modelling;

• public expenditure; and

• government accountability.

It was not:

• commercial advertising;

• harassment of a client;

• disclosure of confidential information; or

• knowingly fabricated technical advice.

The expressive interest is therefore substantial.

8. The Factual Findings Matter to Proportionality

The panel itself accepted that:

• Mira genuinely believed what she said;

• important parts of her criticism were correct;

• she disclosed no confidential information; and

• she did not intentionally mislead anyone.

Those findings significantly reduce the regulator’s justification for a severe sanction.

9. The Erroneous Chart Still Gives the Regulator Something to Regulate

Mira’s analysis was not flawless.

One chart materially overstated the discrepancy.

A professional who publicly invokes expertise may reasonably be expected to exercise care in presenting technical information.

The regulator can therefore argue that some disciplinary response may have been justified even without intentional deception.

That prevents the case from becoming a simple conclusion that:

protected speech equals no discipline.

10. The Reasons Must Demonstrate the Required Balance

Reasonableness under Vavilov is concerned with justification.

In the Charter context, the reasons should demonstrate that the decision-maker actually grappled with the relevant Charter protection and the statutory objective.

Merely acknowledging:

“expressive rights exist”

does not necessarily demonstrate proportional balancing.

11. The Reasons Treat Expression Primarily as an Obstacle to Regulatory Authority

The panel’s Charter discussion is only one paragraph.

It says essentially that expressive rights do not immunize professionals from discipline.

That proposition is true but incomplete.

The panel does not explain why an 18-month suspension represents a proportionate balance.

12. Several Highly Relevant Factors Were Ignored

The reasons do not engage with:

• the public importance of Mira’s subject;

• the correctness of important parts of her criticism;

• the absence of intentional falsehood;

• the fact that she spoke outside a client engagement;

• the lack of confidential information;

• the severity of an 18-month interruption of professional practice; or

• the availability of materially less restrictive sanctions.

Those are obvious constraints on a reasoned proportionality assessment.

13. The Panel Appears to Protect “Public Confidence” From Criticism Itself

The most problematic statement is that a suspension is needed because professional status must not be used to:

“undermine public confidence in major infrastructure.”

A regulator may protect confidence in the profession.

But public confidence cannot simply mean freedom from forceful professional criticism.

Where criticism of government engineering is substantially accurate, treating the fact that it reduces public confidence as the central harm risks suppressing the very scrutiny protected expression can provide.

14. The Severity of the Sanction Requires Serious Justification

An 18-month suspension is not symbolic.

It substantially interferes with Mira’s ability to practise her profession.

The greater the impact of an administrative decision on an affected person, the more the reasons must demonstrate that the relevant interests were actually considered and justified.

The panel provides little explanation for choosing:

• 18 months

instead of:

• a reprimand;

• education;

• a shorter suspension;

• or another available sanction.

15. The Decision Is Therefore Vulnerable as Unreasonable

The regulator has legitimate disciplinary authority and may well have had room to respond to careless technical presentation.

But the decision appears to have failed to demonstrate the proportionate balancing required where that authority limits Charter-protected expression.

The weakness lies not simply in the outcome.

It lies in the justification connecting:

• Mira’s actual misconduct;

• the statutory objectives;

• the Charter impact; and

• the severity of the sanction.

16. The Court Should Not Conduct Its Own De Novo Discipline Hearing

Reasonableness review does not authorize the court to substitute its preferred regulatory policy.

The court’s task is to determine whether the administrative decision is justified under the applicable framework.

If it is unreasonable, the ordinary remedy is to set it aside.

17. Mira’s Requested Substitution Is Too Broad

Mira wants the court to declare that:

no discipline may be imposed.

That would require the court effectively to determine the professional consequences itself.

Yet the findings leave room for a regulator reasonably to conclude that a licensed engineer who publicly uses professional credentials must exercise care in presenting technical data.

The mistaken chart could potentially support some sanction.

There is therefore more than one legally permissible outcome.

18. Remittal Is the Better Remedy

The decision should ordinarily be returned to the regulator for reconsideration according to the correct framework.

A differently constituted panel could consider:

• the expressive protection;

• the statutory objectives;

• the seriousness of the inaccurate material;

• Mira’s state of mind;

• the context of the speech;

• and proportionate sanction options.

The court should not pre-empt that exercise unless circumstances establish that only one lawful result is available.

They do not.

Brickam’s Suggested Marking Approach — Question Three

Issue	Marks
Characterization as discretionary administrative decision engaging Charter s. 2(b) rather than direct constitutional attack on legislation	3
Vavilov / Doré standard of review and rejection of automatic correctness	4
Proportionate-balancing framework: Charter protection and statutory objectives	4
Application supporting regulator: professional status, public confidence mandate, inaccurate chart	3
Application supporting Mira: public-interest expression, substantially correct criticism, no intentional falsehood/confidentiality breach	4
Adequacy of reasons; failure to grapple with relevant constraints and less impairing sanctions; significance of 18-month suspension	5
Remedy: quashing/remittal versus substitution by court	2
TOTAL	25

QUESTION FOUR

25 marks — suggested time: 45 minutes

FACTS

The federal Coastal Infrastructure Review Board (“CIRB”) administers permits for major commercial structures built on federally controlled coastal lands.

The governing legislation authorizes CIRB to approve a project after considering specified environmental, navigational and public-interest factors.

CIRB approved a large cargo terminal proposed by Vanguard Quays Ltd.

The permit authorizes construction to begin in 30 days.

The legislation creates an internal review procedure.

Any:

“person directly affected by a permit decision”

may request review by an independent Review Commissioner within 20 days.

The Commissioner may:

• confirm the permit;

• vary its conditions;

• set it aside;

• return the matter to CIRB;

• receive additional evidence; and

• temporarily stay the permit while the review is pending.

The Commissioner is not a member of CIRB.

Reviews are normally completed within 60 days.

The statute does not create an appeal from the Commissioner to a court.

Two parties object to the permit.

The first is Alden Roake, a commercial fisher.

For 18 years he has used waters immediately adjacent to the approved terminal.

He filed extensive submissions with CIRB arguing that construction would interfere with access to a seasonal fishing area.

CIRB’s reasons rejected his position.

The second is the Canadian Coastal Ecology Alliance (“CCEA”), a national non-profit organization.

CCEA has worked on coastal-habitat issues for approximately 22 years.

It made submissions during CIRB’s process.

It owns no nearby land and does not conduct commercial activity in the affected waters.

CCEA argues that CIRB failed to consider a mandatory statutory factor concerning cumulative destruction of coastal habitat.

CIRB’s 43-page reasons discuss:

• water quality;

• vessel traffic;

• shoreline erosion;

• fish spawning; and

• economic benefits.

The reasons do not mention cumulative habitat loss.

The evidentiary record contains conflicting reports on that issue.

CCEA and Alden jointly file an application for judicial review in the Federal Court four days after CIRB issues its permit.

Neither has requested review by the Review Commissioner.

They ask the Federal Court to:

1. immediately stay the permit;

2. declare CIRB’s decision unreasonable;

3. quash the permit; and

4. order CIRB to refuse Vanguard’s application permanently.

They explain that they bypassed the Review Commissioner because:

“The question is whether CIRB acted lawfully. That belongs in court.”

Vanguard and the Attorney General ask the Federal Court to decline judicial review as premature.

They emphasize that the Review Commissioner:

• is independent of CIRB;

• may address the alleged error;

• may receive further evidence;

• may set aside the permit; and

• may stay construction.

CCEA responds that requiring internal review would merely delay eventual court proceedings.

It also argues that the public importance of coastal habitat gives it standing regardless of whether it is “directly affected” for purposes of the internal review provision.

Assume for purposes of this question that, if the judicial-review application eventually proceeds on its merits, the applicable standard for CIRB’s substantive decision is reasonableness.

Assume further that the Federal Court ultimately concludes that CIRB’s failure to address the mandatory cumulative-habitat factor renders the permit unreasonable.

QUESTION

Advise Alden and CCEA concerning standing, the decision to bypass the Review Commissioner, the appropriate judicial-review forum, and the relief realistically available if a court ultimately finds CIRB’s permit unreasonable.

25 MARKS

THE BRICKAM EXPLANATION — QUESTION FOUR

1. Judicial Review Is Not the Same Thing as the Internal Review Procedure

The first analytical mistake would be to treat the two routes as interchangeable.

The legislation creates an administrative review by an independent Review Commissioner.

Judicial review is the supervisory jurisdiction of the courts over administrative action.

The existence of judicial review does not necessarily entitle a claimant to bypass an adequate administrative mechanism created to correct the same decision.

Alden’s Standing

2. Alden Has a Strong Personal Standing Position

Alden is not a stranger asserting only ideological disagreement.

He:

• fishes beside the proposed site;

• has done so for 18 years;

• participated before CIRB; and

• says the permit interferes directly with his commercial activity.

He is therefore plainly affected in a concrete way.

His standing to challenge the permit judicially is strong.

3. Alden Also Appears Entitled to Use the Internal Review Process

The legislation permits a:

“person directly affected”

to seek administrative review.

Alden is the clearest example of such a person.

His decision not to use the Review Commissioner is therefore a deliberate choice rather than a consequence of lacking access to the statutory mechanism.

CCEA’s Standing

4. CCEA’s Position Requires a Different Analysis

CCEA:

• owns no nearby property;

• suffers no direct economic loss; and

• may not qualify as a “person directly affected” for purposes of the internal review provision.

But statutory entitlement to an administrative review and standing to seek judicial review are not necessarily identical questions.

5. Public-Interest Standing Is Potentially Available

Courts may grant public-interest standing where the appropriate considerations favour allowing the proceeding.

The analysis is flexible and generally considers matters including:

• whether a serious justiciable issue is raised;

• whether the applicant has a genuine interest in it; and

• whether the proposed proceeding is a reasonable and effective way to bring the issue before the court.

CCEA has a substantial basis on the first two factors.

6. CCEA Raises a Serious Legal Issue

Its complaint is not simply:

“We dislike cargo terminals.”

It alleges that CIRB failed to consider a factor that the governing statute required it to consider.

That is a conventional administrative-law issue suitable for judicial determination.

7. CCEA Has a Genuine and Longstanding Interest

CCEA has worked on coastal-habitat issues for 22 years and participated in the underlying process.

This is not a newly created organization seeking to litigate an abstract point.

Its genuine-interest position is strong.

8. The Presence of Alden Is Relevant to Whether CCEA Is Needed

Alden already has straightforward personal standing and raises a challenge to the same permit.

That may reduce the practical need for CCEA to act as a public-interest litigant.

But the analysis is not an inflexible rule that public-interest standing disappears whenever another potential litigant exists.

The court should consider whether CCEA’s participation contributes to a reasonable and effective presentation of the issues.

CCEA therefore has a credible, though less automatic, standing argument.

Exhaustion and Prematurity

9. The Main Immediate Problem Is Not Standing but Prematurity

Both applicants went directly to court four days after the permit was issued.

They ignored a specialized statutory review mechanism capable of addressing essentially the same alleged error.

Courts generally expect available administrative processes to run their course before judicial intervention.

This reflects:

• legislative design;

• administrative autonomy;

• institutional expertise;

• efficiency; and

• the possibility that the administrative process will resolve the dispute without court intervention.

10. The Review Commissioner Is a Particularly Strong Alternative Remedy

The Commissioner is not simply CIRB reconsidering its own work informally.

The Commissioner is independent and can:

• hear the challenge;

• receive new evidence;

• stay construction;

• set aside the permit; and

• remit the matter.

Those powers address both the applicants’ merits concerns and their urgency concerns.

11. The Availability of a Stay Is Especially Important

Alden and CCEA might have had a stronger case for immediate judicial intervention if the administrative process could not prevent irreversible construction while review was pending.

But the Review Commissioner may temporarily stay the permit.

The applicants therefore possess an internal mechanism capable of preserving the status quo.

That makes direct resort to court harder to justify.

12. “The Issue Is Legal” Does Not Eliminate the Exhaustion Principle

The applicants argue that legality is for courts.

Ultimately, judicial review does supervise legality.

But administrative bodies routinely consider legal questions within their statutory mandates.

An internal reviewer may correct the decision before judicial review becomes necessary.

The existence of a legal issue therefore does not itself justify bypassing an adequate administrative remedy.

13. Judicial Review Is Discretionary

Even where the Federal Court possesses jurisdiction, it does not follow that the court must exercise it immediately.

Availability of an adequate alternative remedy is a powerful discretionary reason to decline or postpone review.

The applicants therefore face a serious risk that the present application will be dismissed or stayed as premature.

14. Exceptional Circumstances Could Justify Early Judicial Intervention

Exhaustion is not an absolute jurisdictional bar in every case.

A court may intervene early where circumstances make the administrative route inadequate.

Examples might include:

• genuine inability to obtain effective interim protection;

• extreme delay;

• a fundamental jurisdictional defect that the alternative process cannot address; or

• other exceptional unfairness.

The supplied facts provide little support for those concerns.

15. Alden Has the Weakest Excuse for Bypassing the Commissioner

Alden clearly qualifies for the internal review.

He can obtain:

• merits reconsideration;

• additional evidence;

• and a stay.

His direct judicial-review application is therefore strongly vulnerable to the exhaustion objection.

16. CCEA Has a More Nuanced Position

If CCEA is not:

“directly affected”

within the statutory provision, the Commissioner may not accept its own review application.

That gives CCEA a better answer to the exhaustion argument.

However, Alden can invoke the review and can raise the cumulative-habitat issue.

The Federal Court may still regard immediate parallel litigation by CCEA as premature while the same permit is under an available administrative review.

Forum

17. The Federal Nature of CIRB Matters

CIRB is a federal administrative decision-maker.

Judicial review of federal boards, commissions and other federal decision-makers is ordinarily pursued through the federal judicial-review regime.

The Federal Court is therefore the appropriate judicial-review forum on the supplied facts.

The internal Review Commissioner remains an administrative route, not a substitute court.

Merits and Vavilov

18. If Judicial Review Eventually Proceeds, the Assumed Standard Is Reasonableness

The question directs that reasonableness applies.

Under Vavilov, the court assesses whether the decision is justified, transparent and intelligible in light of the applicable legal and factual constraints.

A mandatory statutory factor is an important legal constraint.

19. Failure to Address a Mandatory Factor Can Render the Decision Unreasonable

CIRB produced extensive reasons.

Length alone does not establish reasonableness.

If the statute requires cumulative habitat loss to be considered and the reasons provide no indication that CIRB addressed it, the omission may reveal a failure to comply with an important statutory constraint.

The question directs that the Federal Court ultimately finds the resulting permit unreasonable.

The remaining issue is remedy.

Remedies

20. Quashing the Permit Is the Natural Starting Point

If the decision is unreasonable, the court may set it aside.

That removes the legal effect of the defective administrative decision.

Judicial-review remedies remain discretionary, but nothing in the facts suggests:

• substantial applicant delay;

• bad faith;

• mootness; or

• another reason to preserve an unlawful permit.

21. Remittal Is Ordinarily Preferable to Judicial Substitution

Alden and CCEA ask the court to order CIRB permanently to refuse the project.

That is a much more ambitious request.

CIRB is the statutory body authorized to:

• weigh environmental evidence;

• assess navigational considerations;

• consider economic and public-interest factors; and

• decide whether a permit should issue.

A reviewing court ordinarily does not take over that administrative function merely because the first decision was unreasonable.

22. The Conflicting Habitat Evidence Makes Substitution Particularly Inappropriate

The evidentiary record contains competing reports concerning cumulative habitat loss.

This is therefore not a situation where correcting the legal defect necessarily produces one inevitable substantive result.

CIRB must evaluate the factor it previously omitted and determine what consequence it has for:

• approval;

• refusal; or

• permit conditions.

That is precisely the kind of matter normally returned to the authorized decision-maker.

23. Vavilov Permits Departure From Remittal in Exceptional Circumstances

There are cases where sending a matter back would serve no useful purpose.

Relevant considerations can include:

• an inevitable result;

• extreme delay;

• fairness to the parties; or

• circumstances in which remittal would simply perpetuate the problem.

But substitution remains exceptional.

Nothing here establishes that the only lawful outcome is refusal.

24. A Stay May Preserve the Position While Administrative Processes Continue

Because construction can begin in 30 days, interim relief matters.

The internal Commissioner possesses express authority to stay the permit.

That is another reason the applicants should pursue the statutory mechanism first.

If judicial review later becomes properly available, ordinary principles governing interim relief may also become relevant where necessary to prevent the proceeding from being rendered ineffective.

25. Overall Advice

Alden has strong personal standing but a weak justification for bypassing the statutory review.

CCEA has a respectable public-interest-standing argument but may face questions about whether its participation is necessary while Alden is able to pursue the same underlying issue.

The Federal Court is the proper judicial-review forum for the federal decision-maker.

The immediate application is nevertheless likely vulnerable as premature because an independent and potentially effective administrative review has not been exhausted.

If review ultimately proceeds and the permit is found unreasonable, the realistic remedy is:

• quashing the decision; and

• remitting the permit application to CIRB for lawful reconsideration,

not a judicial order permanently refusing the project.

Brickam’s Suggested Marking Approach — Question Four

Issue	Marks
Distinction between administrative review and judicial review	2
Alden’s personal standing and access to statutory review	3
CCEA’s public-interest standing: serious issue, genuine interest and reasonable/effective means	5
Exhaustion / adequate alternative remedy / prematurity; strength of Review Commissioner process and stay power	7
Distinction between Alden’s and CCEA’s exhaustion positions	2
Federal Court as appropriate judicial-review forum	1
Consequence of assumed Vavilov unreasonableness; mandatory statutory constraint	2
Remedy: quashing and remittal versus exceptional judicial substitution	3
TOTAL	25

Overall Mark Allocation

Question	Marks
Question One — Procedural Fairness: Triggers, Emergencies and Interim Decisions	25
Question Two — Bias, Independence and Institutional Decision-Making	25
Question Three — Doré, Charter-Protected Expression and Reasonableness Review	25
Question Four — Standing, Exhaustion, Judicial Review and Remedies	25
TOTAL	100