Advanced Administrative Law & Practice

• Unpacking the recent Supreme Court decision in Yatar v TD Insurance Meloch Monnex and the extrapolating the impact of the Supreme Court’s affirmation of the availability and importance of judicial review
• Exploring what questions remain to be determined after Yatar
• Considering other recent case law on the judicial discretion to refuse the application for judicial review
• Identifying the various methods appellants can use to overturn an administrative decision
• Understanding the nature and different types of privative clauses
• Examples of each type of privative clause
• Examining the scope of judicial review when privative clauses exist
• Understanding legislative intent with respect to limiting rights of appeal

The Supreme Court’s 2023 decision in Commission Scolaire Francophone des Territoires du Nord-Ouest v. Northwest Territories unequivocally affirmed the Doré framework, dispelling previous doubts about its survival. With this pivotal affirmation, it is imperative for decision-makers to be fully versed in engagement with Charter rights and values. Topics of discussion include:

• Review of the Doré framework and methodology
• Considering the analysis of "proportionality"
• Enumerating the Charter values that have been recognized to date
• Considering the Northwest Territories decision
• Do decision-makers need to consider Charter values if the parties did not raise those arguments?
• Exploring purpose as a Charter value
• Unpacking the York Region District School Board decision:
• Reviewing the bases for which the Charter will apply to an entity
• Knowing which standard of review to use when determining whether a Charter right is engaged and asking whether this applies equally for Charter values
• Appreciating how deference is heightened when Charter values are in play
• Understanding the interplay between heightened deference and the contrasting view taken in Mason whereby a court’s review of reasonableness must take account of the impact of the decision on the affected individual.

Across Canada, there is a profound disparity between those who have access to adequate food, housing, health, education, and other social and economic rights and those who do not. For people who are already facing other forms of discrimination, having to fight for their basic social and economic rights becomes yet another obstacle to overcome. In this special keynote, the Deputy Chief Commissioner of the Canadian Human Rights Commission will explore the need for stronger human rights protections at the federal level to protect people in Canada from discrimination based on their economic or social condition, as a necessary step to ensure everyone living in Canada has equal access to live a life of their choosing.

In 2014, the Supreme Court of Canada set out a high threshold for overturning regulations in the case of Katz. Following Vavilov, the status of Katz, and the standard of review with respect to regulations, was left unclear. Subsequently, two courts of appeal came to the opposite conclusion in the cases Auer and TransAlta, which have now been heard by the Supreme Court of Canada,with an anticipated decision release date around October 2024. In this session, the speakers will read the tea leaves in anticipation of the decisions by:

• Understanding how appellate courts have tackled whether the high threshold for overturning regulations based on statutory inconsistency set out in Katz still applies or has been replaced by the "robust reasonableness" standard in Vavilov.
• Appreciating the opposing approaches and comprehending the challenges created by the split
• Reviewing the arguments in the Auer and Transalta cases
• Unpacking the oral arguments heard in April 2024
• Considering the arguments of the interveners
• Anticipating the Supreme Court’s decision
• Discussing the possible implications for decision-makers and on other areas of administrative law

Procedural and substantive fairness are hallmarks of the rule of law and public confidence in the administration of justice. Reasons that are not transparent and robust may be overturned on judicial review. Delegated decision-makers face this onus despite inherent tensions with respect to transparency such as cabinet privilege and deliberative secrecy. This panel will explore these tensions and other barriers, implicit or explicit, that delegated decision-makers grapple with. Topics of discussion include:

• Understanding the limits of deliberative secrecy
• Considering what must be included in written reasons (e.g., soft law)
• Navigating cabinet privilege
• Takeaways from the Supreme Court of Canada’s decision on the Doug Ford mandate letters’ case
• Challenging or justifying an administrative decision when the inputs to regulations or other delegated legislation are subject to cabinet privilege
• Exploring other barriers that influence what gets included in reasons (e.g., polarized media representation)

In recognition of Canada’s culturally and ethnically diverse population, it is crucial that administrative bodies also mirror this diversity. Topics of discussion include:

• Appreciating the value of diversity and inclusion and the public’s confidence in the administration of justice
• Understanding power and privilege, unconscious bias or cultural homophily
• Strategies to recruit from the BIPOC, disabled and LGBTQ2IA+ communities and sponsoring them to prepare them for leadership roles
• Learning the best practices for workplace diversity, equity and inclusion
• E.g., the Public Service Employment Act
• Compliance audits under the Employment Equity Act
• Accessibility plans in compliance with the Accessible Canada Act
• The federal Pay Equity Act and other efforts to close the gender pay gap

Self-regulated bodies are accountable to their members and the public for upholding professional standards and ethics. However, self-regulated professionals (e.g., lawyers, paralegals, physicians, psychologists) are equally entitled to procedural fairness in disciplinary proceedings. Balancing the autonomy of self-regulated professions with the
need to uphold administrative law principles presents ongoing challenges. In this session, topics of discussion include:

• Revisiting the focus of the proceeding, e.g., discipline versus the public interest, and tailoring the approach accordingly
• Working with professional misconduct counsel
• How cooperative do self-regulated professionals need to be?
• Analyzing the role of the Board or Tribunal in the investigation and the handling of evidence
• Reviewing the BC Court of Appeal decision to set aside the Law Society of BC’s decision against Bijan Ahmadian for their "problematic" handling of the evidence
• Accessing investigative reports and knowing the obligations with respect to disclosing these reports to the member
• Considering Bill 21 in British Columbia (i.e., the proposed removal of self-regulation)
• Analyzing how mental health is considered in disciplinary proceedings of self-regulated professions