Quasi-Judicial

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Date Retrieved:	2025-04-01
CLNP Page ID:	2483
Page Categories:	[Legal Principles]
Citation:	Quasi-Judicial, CLNP 2483, <https://rvt.link/fb>, retrieved on 2025-04-01
Editor:	Sharvey
Last Updated:	2025/03/06

Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36 (CanLII), [2003] 1 SCR 884

26 In answering this question, we must attend not only to the adjudicative function of the Tribunal, but also to the larger context within which the Tribunal operates. The Tribunal is part of a legislative scheme for identifying and remedying discrimination. As such, the larger purpose behind its adjudication is to ensure that governmental policy on discrimination is implemented. It is crucial, for this larger purpose, that any ambiguities in the Act be interpreted by the Tribunal in a manner that furthers, rather than frustrates, the Act’s objectives. For instance, as the intervener Canadian Labour Congress argued before this Court, it would be counterproductive if the Tribunal were, in pay equity disputes, to compare the value of different forms of work using a method that itself rests on discriminatory attitudes. This would perpetuate discrimination, rather than helping to eradicate it. In endowing the Commission with the power to issue interpretive guidelines, and in binding the Tribunal to observe these guidelines, the legislature has attempted to guard against this possibility. The Act therefore evinces a legislative intent, not simply to establish a Tribunal that functions by means of a quasi-judicial process, but also to limit the interpretive powers of the Tribunal in order to ensure that the legislation is interpreted in a non-discriminatory way. The fact that the legislature regarded such limits as necessary for the fulfilment of the ultimate purpose of the Act must be borne in mind in determining precisely which sorts of fetters on the Tribunal’s decision-making power adversely affect its impartiality, and which do not.

Blais v. Basford, 1972 CanLII 2193 (FCA), [1972] 1 FC 151

If the problem which we have to decide were the same as that decided in the cases men-tioned, that is to say, whether the powers of the Minister under sections 9(3) and 9(4) of the Bankruptcy Act are administrative or judicial, I know of no sound answer that could be given to Mr. 011ivier's contention. But to my mind, as I have already indicated, the problem is not the same. It is whether these powers, even though administrative, are required by law to be exer­cised on a judicial or quasi-judicial basis. It must I think be borne in mind that section 28 of the Federal Court Act is new legislation which confers a heretofore unknown and non-existent right of review, broader than was formerly available by Crown writ procedures and defined as applying to all decisions of federal boards, commissions or tribunals excepting those deci­sions embraced within the meaning of what, so far as I am aware, is a newly defined group or class of decisions that is to say "decisions or orders of an administrative nature not required to be made on a judicial or quasi-judicial basis".

What this appears to me to mean is that any purely administrative decision, such as, for example, a decision of a Minister that an automobile should be purchased for his depart-ment, is not reviewable, but that wherever the administrative decision is required by law— which includes the common law, the justice of which will supply the omission of the legislature (vide Byles J. in Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180)—to be made on a judicial or a quasi-judicial basis the deci­sion is reviewable. As to what a "judicial or quasi-judicial basis" means in this context the nearest expression which I have found in the jurisprudence cited is that of Davis J. in St. John v. Fraser [1935] S.C.R. 441, a case which was cited along with Board of Education v. Rice by Hall J. in Wiswell v. Winnipeg [1965] S.C.R. 512 at page 522. In the St. John case Davis J. said at page 451:

Assuming then in favour of the appellants that the prohibitory section does not apply in this case, the real issue on the merits is whether or not the plaintiffs were entitled as of right to be afforded freedom of cross-examination of each and every witness called by the investigator. Counsel for the appellants says that such a right is founded upon what he terms "natural justice," "essential justice" or "British justice". Such phrases are rather loose and vague terms. The rights of the parties must be determined upon the basis of what they are entitled to according to law. A decision in accordance with the law is justice. Lord Shaw of Dunfermline said in Local Government Board v. Arlidge ([1915] A.C. 120 at page 138):

In so far as the term "natural justice" means that a result or process should be just it is a harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarrant­ed transfer into the ethical sphere of a term employed for other distinctions ....

...

In the present situation it is I think manifest that the statute requires the Minister to reach his decisions under section 9(3) and 9(4) not by caprice but on the basis of what he honestly considers to be of public advantage to do. He is also required, as I see it, to reach this decision having regard both to what is stated in the applicant's application and what is stated in the report of the Superintendent's investigation. He must do this fairly and justly for as said by Lord Loreburn L.C. in Board of Education v. Rice [1911] A.C. 179 at page 182, to act in good faith and fairly listen to both sides is a duty lying upon every one who decides anything. These features alone are in my view sufficient to characterize the powers under section 9(3) and 9(4) as required by law to be exercised on a judicial or quasi-judicial basis within the mean­ing of section 28 of the Federal Court Act. But while nothing more would be likely to be required where no conflict arose between the application and the Superintendent's report it would to my mind be plainly unfair, if there were material in the report which the applicant had never had an opportunity to answer, and the matter were thereupon decided upon such material without first affording the applicant an opportunity to make an answer and thereafter again considering the material in the light of such answer. In such a situation in my view the legal requirement of such an opportunity to answer is plain and if I am right in this it constitutes a further feature of the powers indicating that they are to be exercised on a judicial or quasi-judicial basis.

Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), [2021] 1 FCR 271

[21] The next substantive issue examined by the Federal Court was CARL’s submission that the four JGs at issue unlawfully fettered the discretion of the Board members. On that issue, the Chief Justice declined to determine whether the standard of review was that of correctness or reasonableness because, in any case, fettering of a decision maker’s discretion is per se unreasonable. He then summarized the requirements of adjudicative independence, which at its root means that judges and quasi-judicial decision makers must be at liberty to hear and decide cases without interference. Relying on IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, 73 O.R. (2d) 676 (Consolidated-Bathurst) and Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 (Ellis-Don), he stated [Reasons, at paragraphs 93 and 95]:

Put differently, in the administrative law context, it can be entirely appropriate to embrace tools such as guidelines to influence, in a general way, the manner in which decisions are reached. In this regard, a legitimate type of general influence can include identifying factors, sources of information, and even particular information that can be helpful to consider. Indeed, I consider it to be permissible to go further and encourage such information to be taken into account, so long as it is made clear that decision makers remain completely free to reach their own conclusions, based on the facts of each particular case.

…

However, the line would be crossed when the language used in guidelines may be reasonably apprehended by decision makers or members of the general public to have the likely effect of either pressuring independent decision makers to make particular factual findings or attenuating their impartiality in this regard. The same is true where such language may be reasonably apprehended to make it more difficult for independent decision- makers to make their own factual determinations. This is so even if it has been stated that the guidelines are not binding. [Emphasis in original.]