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 Do not use the superseded contextual standard-of-review analysis associated with Dunsmuir and earlier jurisprudence.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

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

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

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