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Procedural safeguards in the administrative process Parup, Mats Stefan 1978

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PROCEDURAL SAFEGUARDS IN THE ADMINISTRATIVE PROCESS by MATS STEFAN PARUP J u r i s Kandidat, University of Stockholm, 1977 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS i n THE FACULTY OF GRADUATE STUDIES Department of Law We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA June, 1978 <c) Mats Stefan Parup, 1978 In presenting th i s thes is in pa r t i a l fu l f i lment of the requirements for an advanced degree at the Univers i ty of B r i t i s h Columbia, I agree that the L ibrary sha l l make it f ree ly ava i l ab le for reference and study. I further agree that permission for extensive copying of th is thes is for scho lar ly purposes may be granted by the Head of my Department or by his representat ives. It is understood that copying or pub l i ca t ion of th is thesis fo r f inanc ia l gain sha l l not be allowed without my writ ten permission. Department of LU  The Univers i ty of B r i t i s h Columbia 2075 Wesbrook Place Vancouver, Canada V6T 1W5 Cii) ABSTRACT Throughout the common law countries studies and investigations have been carried out to reform the procedure used by administrative tribunals. The procedural rules t o which, tribunals i n B r i t i s h . Columbia must adhere are found i n the common law rules of natural j u s t i c e and i n the t r i b u n a l s ' establishing statutes. This system has been severely c r i t i c i z e d as i t i s inconsistant and unpredictable. There i s no consensus amongst the. common law j u r i s d i c t i o n s as to which solution to the problem of procedural safeguards i n the administra-t i v e process i s most preferable. The competing i n t e r e s t s ; protection of the public from unfair government actions, and the e f f i c i e n c y of the administration, are the reasons f o r t h i s lack of consensus. I t i s the thesis of t h i s essay that procedural reform i s needed i n B r i t i s h Columbia. Therefore, B r i t i s h Columbia would benefit from a min-imum administrative procedure act applicable to a l l administrative t r i b u n a l s ' adjudicative functions. The method used to establish t h i s thesis was to research the pres-ent s i t u a t i o n i n B r i t i s h Columbia. As a background to t h i s , a descrip-t i o n of the common law rules of natural j u s t i c e and a study of the pro-cedural rules of three p r o v i n c i a l tribunals enacted by the Legislature are given. This essay continues with a description of the solutions used i n Ontario and i n the United States where minimum procedure rules have been enacted, applicable, to most administrative t r i b u n a l s . After considering these di f f e r e n t solutions, along with, the i n -vestigations of law reform reports from various common law j u r i s d i c t i o n s , i t has been concluded that certain fundamental procedural safeguards ( i i i ) should be enacted by way of an administrative procedure act. The main argument f o r t h i s i s that such, an act would serve an educational purp-ose by informing both, administrators and the public of the procedural r u l e s . As the suggested procedural rules are very fundamental, i t i s also concluded that i t i s necessary to carry out further investigations i n -to each t r i b u n a l . In this.way, more detailed procedural rules could be enacted, applicable to a s p e c i f i c t r i b u n a l , i f deemed, necessary. In summary, the conclusion of t h i s thesis i s that a minimum admin-i s t r a t i v e procedure act w i l l f i l l an educational purpose and, at the same time, might help to achieve a more consistant, predictable admin-i s t r a t i o n with regard to procedure. I t might also work as a catalyst by promoting further studies into the procedural aspect of the adminis-t r a t i v e process. (iv) T A B L E OF C O N T E N T S INTRODUCTION 1 CHAPTER I PROCEDURAL SAFEGUARDS IN-THE ADMINISTRATIVE PROCESS IN BRITISH COLUMBIA 4 THE COMMON LAW RULES OF NATURAL JUSTICE 5 A p p l i c a b i l i t y of the Common Law Rules of Natural Justice 6 The Procedural Content of the Rules of Natural Justice 9 THE RENTALSMAN 14 J u r i s d i c t i o n of the Rentalsman 15 Procedural Requirements 17 THE FIRE MARSHAL 23 J u r i s d i c t i o n of the Fir e Marshal 23 Procedural Requirements 25 THE LABOUR RELATIONS BOARD 32 J u r i s d i c t i o n of the Labour Relations Board 33 Procedural Requirements 35 CHAPTER I I TWO ADMINISTRATIVE PROCEDURAL CODES 44 THE STATUTORY POWERS PROCEDURE ACT IN ONTARIO 45 A p p l i c a b i l i t y of the Minimum Rules 46 Procedural Requirements 52 THE ADMINISTRATIVE PROCEDURE ACT IN THE UNITED STATES 60 A p p l i c a b i l i t y of the Minimum Rules <, 61 Procedural Requirements f o r Adjudication 63 (v) CHAPTER I I I SHOULD BRITISH COLUMBIA ENACT A MINIMUM ADMINISTRATIVE PROCEDURE ACT? 68 REFORM OR STATUS QUO 69 The Arguments 70 SOME SUGGESTIONS FOR A MINIMUM ADMINISTRATIVE PROCEDURE ACT FOR BRITISH COLUMBIA 75 A p p l i c a b i l i t y of a Minimum Administrative Procedure Act 75 Fundamental Procedural Safeguards to be Enacted i n an Administrative Procedure Act 80 CONCLUSION 92 FOOTNOTES 94 BIBLIOGRAPHY 120 - 1 -INTRODUCTION The development of governmental intervention i n new areas of society i s one of the most s i g n i f i c a n t changes of the pos t - i n d u s t r i a l world. Administrative agencies have been created to control, regulate, and make decisions involving individuals and t h e i r property, t o an ex-tent unheard of at the beginning of t h i s century. These administrative agencies have been seen as having the pot e n t i a l f o r speedy, inexpensive, and e f f e c t i v e means to achieve the changes and control f e l t necessary by the government. On the other hand, i n carrying out the goals of the government, they also have the potential to encroach upon i n d i v i d u a l rights and freedoms without the protection of due process. Many in q u i r i e s and studies have been done a l l over the world to t r y to resolve the problems of competing interests between an e f f e c t i v e ad-mini s t r a t i o n , and the protection of i n d i v i d u a l r i g h t s . Common opinion has been that an e f f e c t i v e administration can not be hampered too greatly by formalism. On the other hand, procedural safeguards are the most ef f e c t i v e way to protect the private c i t i z e n from i l l e g a l , a r b i -t r a r y , or unfair government actions. Is there possibly a compromise with regard to procedural safeguards? Are there some ultimate solutions which would keep the administration lawful, f a i r , and correct without putting unnecessary constraints on the agencies' f l e x i b i l i t y i n carry-ing out the government's decisions and pol i c i e s ? The main objective of t h i s thesis i s to study the problem of pro-cedural safeguards i n the administrative process i n B r i t i s h . Columbia. Here, administrative procedure i s regulated by the common law rules of natural j u s t i c e which have been developed by the courts to protect the - 2 -in d i v i d u a l from unfair governmental actions. However, the B r i t i s h Columbia Legislature enacts procedural safeguards in. the establishing statutes of tribunals as w e l l . I plan to describe the procedural rules that are enacted and demonstrate the. consistency, i f any exists with regard to procedure, between the d i f f e r e n t t r i b u n a l s . In order to do t h i s , I have selected three administrative p r o v i n c i a l t r i b u n a l s . I have then selected the more common procedural safeguards necessary f o r a f a i r procedure, and have described each., under i t s own heading, as i t pertains to each of the three tri b u n a l s . The procedural safeguards I have chosen are: Notice, Right to P a r t i c u l a r s , Hearing, Disclosure of Information, Adjournment, A p p l i c a b i l i t y of the Rules of Evidence, Counsel, Cross-Examination of Witnesses, Hearing by Person Who Decides, Reason f o r Decision, and Bias. ^ These procedural rules are those.most commonly connected with natural j u s t i c e and with a f a i r administrative process. However, as they naturally overlap, i t i s sometimes d i f f i c u l t to distinguish them from one another. An example of t h i s d i f f i c u l t y i s i l l u s t r a t e d between Notice as opposed to Right to P a r t i c u l a r s . Because of ambiguous lang-uage, i t i s d i f f i c u l t to determine exactly what the procedural require-ment of Notice e n t a i l s . I t may mean only giving n o t i f i c a t i o n of the time of a hearing i n one instance, or the n o t i f i c a t i o n of an issue i n another. As I w i l l demonstrate l a t e r on, some cases suggest that Notice includes p a r t i c u l a r s . The Right to P a r t i c u l a r s , on the other hand, i s more c l e a r l y definable. I t i s the r i g h t to a l l information concerning the issue, including under what statutory power the issue f a l l s and the reasons f o r which the proceedings are i n i t i a t e d . Despite t h i s d i f f i c u l t y , i t seems important to t r y to discuss each, separately. - 3 -D i f f i c u l t y arises again when one attempts to define 'Hearing'. In the administrative process, a hearing can vary from being an informal telephone c a l l to a proceeding not f a r removed from regular courtroom (2) practice. Many common law countries have t r i e d to achieve some form of con-sistency i n t h e i r administrative process regarding procedural require-ments. The solution given i n B r i t i s h Columbia, to r e l y upon the common law and some enactments by the l e g i s l a t u r e , i s one which has been sev-erely c r i t i c i z e d throughout common law j u r i s d i c t i o n s . In Chapter I I I w i l l describe two dif f e r e n t solutions to t h i s problem. The f i r s t i s found i n the province of Ontario where the rules of natural j u s t i c e (3) have been cod i f i e d and applied to most administrative agencies. The (ti) second i s the enactment i n 1946 of an Administrative Procedure Act i n the United States of America. This enactment goes much further i n regulating and organizing administrative procedure than other j u r i s d i c -tions . The concluding chapter of t h i s thesis i s a discussion of the v i r t -ues of each solution, with an attempt to f i n d an i d e a l solution to the procedural problem i n B r i t i s h Columbia. The problem of competing i n t e r -ests between an ef f e c t i v e administration and the protection of the i n -d i v i d u a l w i l l be considered. I have also outlined those procedural rules.which I believe are essential f o r minimal procedural protection and which can be applied to a l l adjudicative administrative proceedings. - 4 -CHAPTER I PROCEDURAL SAFEGUARDS IN THE ADMINISTRATIVE PROCESS IN BRITISH COLUMBIA The procedure to which administrative tribunals ^ i n B r i t i s h Columbia must conform i s to be found i n the common law rules of natural j u s t i c e together with some rules l a i d down by the l e g i s l a t u r e i n the tribu n a l s ' establishing statutes. This chapter gives a broad description of the natural j u s t i c e rules i n the common law as a background to the more detailed study of the three tribunals from B r i t i s h Columbia. These three tribunals are the Rentalsman, the F i r e Marshal and the Labour Relations Board. The func-tions and j u r i s d i c t i o n of each board w i l l be discussed and special atten-t i o n paid to statutory procedural r u l e s . - 5 -THE COMMON LAW RULES OF NATURAL JUSTICE The common law has developed a set of fundamental procedural rules referred to as "natural j u s t i c e " . They are said to consist of two basic concepts: a) no-one s h a l l be the judge i n his own case, b) no-one (2) s h a l l be condemned without being heard. These rules have t h e i r f i r s t roots i n the ancient world and can be traced back to medieval pre-cedents . ^ The common law rules of natural j u s t i c e are designed to provide c e r t a i n procedural safeguards i n the administrative process. The pro-cedural substance of the rules of natural j u s t i c e i s linked c l o s e l y to the procedural rules applied i n the courts. As statutory rules are, i n t h i s respect, scarce, and because they d i f f e r from one t r i b u n a l to another, the courts, with the help of the concept of natural j u s t i c e , have sought to j u d i c i a l i z e the administrative process. Natural j u s t i c e , created by the courts to apply to administrative t r i b u n a l s , covers any r i s k of an omission of a procedural requirement i n the statutory require-(4) ments. Natural j u s t i c e rules also cover the situations where pro-cedural safeguards have not been complied with by a t r i b u n a l when a r r i v -ing at a decision. ^ The courts have presumed that the intention of the Legislature was that the administrative decision-maker must follow a " f a i r " procedure even i f no procedural rules are enacted i n the tribunal's enabling statute. However, the courts respect the supremacy of the Legislature i f i t has c l e a r l y enacted, f o r example, that a t r i b u n a l does not need to hold a hearing. A f t e r the courts'presumption that i t was intended that f a i r procedure be followed, they give substance to what t h i s means - 6 -i n each separate case. ^ The question of what " f a i r " administrative procedure e n t a i l s i s l e f t to the courts to decide. They have the authority to grant j u d i c i a l review of a l l administrative actions, t h i s being a part of t h e i r r o l e as (7) a supervisory control over i n f e r i o r tribunals. There may be statu-tory provisions f o r appeal to the courts regarding a decision made by a tr i b u n a l . I f the court establishes that the tribunal's decision was made i n disregard of the rules of natural j u s t i c e , i t may declare that the t r i b u n a l i n question lacks j u r i s d i c t i o n and, i n so doing, declare (8) the decision u l t r a v i r e s . Before establishing what makes f o r a f a i r procedure, i t i s important f i r s t to establish to which tribunals the rules of natural j u s t i c e apply. The A p p l i c a b i l i t y of the Common Law Rules of Natural Justice The rules of natural j u s t i c e are not applicable to a l l administrat-(9) ive tribunals. The courts have c l a s s i f i e d the functions of each t r i b u n a l i n order to establish whether or not the natural j u s t i c e rules are applicable. I f the tribunal's function i s c l a s s i f i e d as being j u d i c i a l or q u a s i - j u d i c i a l , the t r i b u n a l must comply with the rules of natural j u s t i c e when a r r i v i n g at i t s decision. I f , however, the court finds the t r i b u n a l to be purely administrative i n i t s function, the rules are held not to apply. The major problem of administrat-ive procedure l i e s i n t h i s c l a s s i f i c a t i o n of function. I t i s said that (12) no certainty can be derived from the courts' decisions i n t h i s context. I t i s frequently not cle a r what the terms j u d i c i a l , q u a s i - j u d i c i a l and (13) administrative r e a l l y mean, a fact which creates uncertainty not only f o r the decision-makers i n the t r i b u n a l s , but also f o r those subject to the j u r i s d i c t i o n of the tribunals. - 7 -(14) The terminology used i s c i r c u l a r . The courts reason that the rules of natural j u s t i c e are applicable i f the tribunals' powers are j u d i c i a l or q u a s i - j u d i c i a l . I f the rules do not apply, then the tribu n -(15) a l s ' powers are said to be purely administrative. The uncertainty f e l t by both administrators and participants i n administrative actions i s primarily due to the fa c t that there i s no cert a i n test which can be used to determine whether natural j u s t i c e can be applied to any p a r t i c u l a r case. The approaches taken by the courts i n deciding the question of the c l a s s i f i c a t i o n of the tribunals' powers, are said to be so numerous that (17) (18) no r a t i o n a l t e s t has been developed to determine the issue. Reid has i d e n t i f i e d four basic approaches to the c l a s s i f i c a t i o n of the functions, but says: "There does not seem to be any order of preference of importance among the four common approaches. I f there were, much of the present uncertainty would disap-pear . . . ." "The r e s u l t i s that both the substantive and the adjective elements of the super-visory process of the courts are contort-ed, uncertain and confused. The picture i s one of i l l o g i c , a r bitrariness and mystery despite the general s i n c e r i t y of intentions. The everlasting search f o r the d i s t i n c t i o n between "administrative" and " j u d i c i a l " occurs i n an a i r of frus-t r a t i o n and un r e a l i t y . " (20) Some of the approaches taken by the courts i n the c l a s s i f i c a t i o n (21) of t r i b u n a l s ' functions are described i n the following subsections. Is There a Duty to Act J u d i c i a l l y ? In a famous statement by Lord A t k i n i n the E l e c t r i c i t y Commissioner's - 8 -(22) case, the test was said to have been the determination of whether an agency has the power to a f f e c t the r i g h t s of subjects, and i f there i s a super-added duty to act j u d i c i a l l y . I f these two c r i t e r i a are sat-i s f i e d , the t r i b u n a l i s said to be j u d i c i a l , or q u a s i - j u d i c i a l , and thus i s affected by the rules of natural j u s t i c e . On the other hand, i t i s said that t h i s "super-added" t e s t Has f a l l e n from grace, and thus, the Courts of B r i t i s h Columbia now look (23 mainly at whether persons or property are affected by agency actions. Right or P r i v i l e g e D i s t i n c t i o n (24) . There are several cases, that of Nakkuda A l l i n p a r t i c u l a r , which r e l y on the d i s t i n c t i o n between whether a r i g h t i s affected by the action of an agency, or a p r i v i l e g e . I f i t concerns merely a p r i v i l e g e , the function of the t r i b u n a l i s c l a s s i f i e d as being administrative, and no procedural safeguards are afforded. However, i t seems impossible to (25) determine what i s a r i g h t and what i s merely a p r i v i l e g e . In (26) Nakkuda A l i a t e x t i l e dealer's licence to carry on-ibusiness was held by the Privy Council to be merely a p r i v i l e g e , and i t s revocation was an administrative decision. Other cases dealing with l i c e n s i n g suggest that the d i s t i n c t i o n should be made between the i n i t i a l l i c e n s i n g decision, which i s administrative, and revocation, which affects a r i g h t and therefore i s a " j u d i c i a l " decision worthy of the protection of natural j u s t i c e . However, l i c e n s i n g powers have generally been held as . . . (27) being j u d i c i a l or q u a s i - j u d i c i a l . In two Canadian cases, Howarth (28) (29) v. Prince George and R. v. B i r d ex parte Ross, the dismissal of a municipal building inspector and a fireman was held not to a f f e c t r i g h t s on the grounds that there i s no r i g h t to continued employment. - 9 -Fairness The d i f f e r e n t approaches i n the c l a s s i f i c a t i o n of the functions of a t r i b u n a l , whether j u d i c i a l or administrative, have been severely c r i t i c i z e d as being meaningless l a b e l l i n g . Since 1967 a new approach has been developing i n the United Kingdom, generally c a l l e d the fairness approach. I t i s held to apply to a l l administrative decisions, (31) without c l a s s i f i c a t i o n of functions. The tribunals must reach t h e i r decisions f a i r l y , and i n doing so, must f u l f i l l the procedural require-(32) ments, which the court determines as essential. The B r i t i s h approach to fairness has not yet found a foothold i n Canada, where the courts continue to c l a s s i f y the functions of the dif f e r e n t tribunals before determining whether natural j u s t i c e rules (33) are applicable or not. There are, however, some recent Canadian cases which have been interpreted as examples showing that c l a s s i f i c a t -ion i s not necessarily essential before the courts can afford the pro-t e c t i o n of natural j u s t i c e . On the other hand, the courts do not openly r e l y on the B r i t i s h authorities as a basis f o r these n o n - c l a s s i f i c a t i o n (34) cases. The Procedural Content of the Rules of Natural J u s t i c e The following subsections describe some of the rules of natural j u s t i c e under the headings explained i n the Introduction. The courts may hold that an adjudicative agency, once i t s functions have been c l a s s i f i e d as being j u d i c i a l or q u a s i - j u d i c i a l , must comply with one or more of these procedural safeguards. I t i s important to appreciate the fac t that i f a tribunal's functions have been c l a s s i f i e d as either j u d i c i a l or q u a s i - j u d i c i a l , i t does not mean a l l of the natural j u s t i c e - 10 -(35) rules need apply uniformly. The extent to which the rules w i l l (36) apply depends upon the circumstances of each case. Notice (37) In the case of Klymchuk v. Cowan, where a permit as a used car dealer was cancelled without notice or hearing by the Registrar of Motor Vehicles, i t was held that despite that fact that the statute d i d not require that notice be given, "the demands of j u s t i c e w i l l i n s i s t (38) that notice be given". Smith, J . continued: "The requirements of notice and an.oppor-tunity to be heard need not involve any-thing i n the nature of formal proceedings. A l l that i s required i s that reasonable notice be given, with the grounds of com-p l a i n t , and that a reasonable opportunity to answer the allegations against him be afforded." (39) The points i l l u s t r a t e d i n t h i s case are that the e s s e n t i a l factors i n -clude the form, (grounds of complaint), timing, (reasonable not i c e ) , and s u f f i c i e n t information, (reasonable opportunity to answer the a l l e -gations). Right to Pa r t i c u l a r s I t i s most often held that the notice has to include the "grounds (41) of complaint". This i s so that the affected party knows i n ad-vance what he i s up against, and i s thereby given an opportunity to pre-(42) pare h i s defence. Hearing When a t r i b u n a l has been c l a s s i f i e d as j u d i c i a l or q u a s i - j u d i c i a l , i t i s held to "act i n good f a i t h and f a i r l y l i s t e n to both sides" ^ 4 3 ) - 11 -by the courts. The general r u l e i s that the t r i b u n a l s h a l l hear both (44) sides, though not treating the proceedings as i f i t were a t r i a l . The hearing does, however, "bear a basic resemblance to a hearing i n a court". ( 4 5 ) Disclosure of Information I t i s said generally that tribunals are required to disclose i n -formation i n order to give the affected parties a f a i r chance to make t h e i r case. However, not a l l material need be disclosed. There appears to be a d i s t i n c t i o n between the material submitted by the parties involved, which i s disclosed, and the material collected by the agency, which does not have to be disclosed, Adjournment In some circumstances, the courts have held that f a i l u r e to adjourn (49) a hearing i s a denial of natural j u s t i c e . This r u l e i s a part of the whole concept of giving a party a f a i r chance to make hi s case, but, there are no s t r i c t guidelines l a i d down as to when one should adjourn. The courts have considered i f the adjournment was sought bona f i d e , and not just used to obstruct the t r i b u n a l proceedings, A p p l i c a b i l i t y of the Rules of Evidence The procedural rules of natural j u s t i c e do not require that t r i -(51) bunals adhere to the formal rules of evidence. Counsel The r i g h t to counsel i s not an absolute r u l e i n natural j u s t i c e . The court apparently considers the seriousness of the possible action, - 12 -the more serious, the more w i l l i n g the court i s to give the party con-(52) cerned the r i g h t to counsel. Qross-Examination of Witnesses There i s no general r i g h t to cross-examination i n the administrat-(53) lve process. I f cross-examination i n a p a r t i c u l a r case appears to be the only e f f e c t i v e means to afford a party'a f u l l and.fair opportun-i t y to make hi s case, the courts hold that the r e f u s a l of a t r i b u n a l to (54) allow cross-examination i s a breach of natural j u s t i c e . Hearing by Person Who Decides Generally speaking, the decision-making authority must be present while the evidence i s being presented. . The authority f o r t h i s i s The  King v. Huntingdon Confirming Authority, where i t was said by Lord Hanworth: " I t i s quite possible that a l l the j u s t i c e s who heard the case and the evidence on A p r i l 25 may not be able to attend on any further hearing, but however that may be, those ju s t i c e s who did hear the case must not be joined by other j u s t i c e s who had not heard the case f o r the purpose of reading a decis-ion, on t h i s question of continuation." (56) Reason f o r Decision The common law does not i n s i s t that the tribunals provide the (57) affected persons with a reason f o r t h e i r decisions unless i t i s so stated i n the t r i b u n a l s ' establishing statutes, Sometimes however, the courts do express the opinion that i t i s desirable that the tribunals ( 58) give the reasons f o r t h e i r decisions. - 13 -Bias Bias, or the l i k e l i h o o d of bias constitutes a denial of natural (59) j u s t i c e . The te s t used to determine bias i s usually an objective one. The te s t i s that i f a reasonable person, a f t e r considering a l l the circumstances, f e e l s that there i s reason to suppose improper interference from the decision-maker, then there i s a l i k e l i h o o d of , . (61) bias. These rules of natural j u s t i c e are those to which the tribunals i n B r i t i s h Columbia must adhere once the court has c l a s s i f i e d the tribunals as j u d i c i a l or q u a s i - j u d i c i a l . The Legislature has not l e f t a l l proced-u r a l questions to be regulated through the common law. In most tribu n -a l s ' enabling statutes i n B r i t i s h Columbia, the Legislature has enacted some procedural safeguards which are supplemented by the common law. Which ones, and to what extent w i l l be the theme throughout the follow-ing description of three tribunals i n B r i t i s h Columbia. - 14 -THE RENTALSMAN ( 1 ) (2) The o f f i c e of rentalsman was established i n 1974. P r i o r to t h i s , only the courts, and i n p a r t i c u l a r the Small Claims Court, had (3) j u r i s d i c t i o n i n deciding landlord and tenant disputes. While there were some administrative tribunals which dealt with these problems, t h e i r work consisted merely of receiving, investigating and attempting l u t : (5) (4) to mediate complaints. They could only recommend a solution, and had no j u r i s d i c t i o n to give any l e g a l l y binding decision. The creation of a rentalsman was suggested i n the report of the Law (6) Reform Commission of B r i t i s h Columbia on Landlord Tenant Relationships. - . . . . . (7) The Commission had studied the rentalsman i n Manitoba, having been d i s s a t i s f i e d with the court's r o l e i n the adjudication of landlord -(8) tenant disputes i n B r i t i s h Columbia. They were d i s s a t i s f i e d because the courts acted slowly, had no powers of investigation, and lacked ex-(9) pertise i n landlord and tenant disputes, a l l arguments frequently used when taking j u r i s d i c t i o n from the courts, and expanding the admin-i s t r a t i v e j u s t i c e . The o f f i c e of rentalsman was established, and i t s j u r i s d i c t i o n de-fined by the Landlord and Tenant Act of 1974. This was repealed i n 1977, and replaced by the Residential Tenancy Act which came into (12) force November 1, 1977. The new act i s much the same as i t s pre-decessor. The rentalsman i s appointed by the Lieutenant-Governor i n Council, (13) and holds o f f i c e f o r a f i v e year term on good behaviour. Additional (14) terms can be prescribed. The Lieutenant-Governor i n Council may (15) also appoint one or more persons to be deputy rentalsmen. The - 15 -(lfi) rentalsman, subject to the Public Service Act, may then appoint Such employees as he considers necessary. The Law Reform Commission recommended that the rentalsman should (18) have l e g a l q u a l i f i c a t i o n s . Their reasons f o r t h i s suggestion were that the rules of natural j u s t i c e should be observed and that i t was therefore important f o r the person who was to hold the position to know the law and l e g a l procedure when deciding matters which deal with (19) possessions. Under the Landlord and Tenant Act, as f i r s t enacted, the rentalsman alone had the power to carry out investigations, give orders, etc. When the employees of the rentalsman's o f f i c e had completed an i n v e s t i -gation, they would make recommendations to the rentalsman, who would make the f i n a l decision. The rentalsman himself was more or less a (21) 'rubber stamp'. This way of functioning was successfully challenged (22 ) i n the case, Greenhut v. Scott, and so the Act was amended to give (no ) the rentalsman the power to delegate a l l h i s functions. This change has been carried forward into the new Act. J u r i s d i c t i o n of the Rentalsman One of the objectives of the Legislature when establishing the rentalsman was to remove the court's j u r i s d i c t i o n over landlord and (25) tenant disputes. The Law Reform Commission's view of the d i v i s i o n between the courts and the rentalsman was that: "General j u r i s d i c t i o n i n landlord and tenant matters should remain i n the Courts and the rentalsman should undertake only those func-tions which are s p e c i f i c a l l y allocated to him. For example, the rentalsman should have the power to d i r e c t repairs to damaged premises, - 16 -but any action f o r damages a r i s i n g out of a f a i l u r e to re p a i r , whether framed i n contract or i n t o r t , should continue to be pursued i n the Courts." (26) Under the Residential Tenancy Act of 1977, the Legislature has given the rentalsman exclusive j u r i s d i c t i o n to receive an application, (27) investigate, hear and make an order with respect to over t h i r t y (28) enumerated matters. The most important of which are: a) the (29) v a l i d i t y of notice of termination, b) the ri g h t to occupy r e s i -d e n t i a l premises, c) the power to terminate a tenant's contract. The majority of the remaining enumerations are related to these f i e l d s . (32) The exclusive j u r i s d i c t i o n also extends to security deposits and (33) abandoned chattels. The rentalsman's functions, under s, 51(2), have been described by (34) Klippert to be " p r i n c i p a l l y q u a s i - j u d i c i a l " and by the courts to (35) be q u a s i - j u d i c i a l . For example, i n the case of Greenhut v. Scott, the question being that of termination of contract, i t was said: " I t i s not disputed that the rentalsman, (or the deputy), i s acting i n a q u a s i - j u d i c i a l capacity i n proceedings such as those here under review . . . ," (36) The Law Reform Commission apparently s t i l l regarded most of the work done by the rentalsman as being purely administrative. The only excep-(37) t i o n acknowledged by them was the j u r i s d i c t i o n to make possession orders. The rentalsman also has functions which do not r e s u l t i n binding decisions and orders; he i s to advise landlords and tenants i n tenancy (38) matters, he i s to promote the pr i n c i p l e s of the Act and public (39) understanding of and compliance with these p r i n c i p l e s , and he i s to educate and advise landlords and tenants of the r i g h t s and remedies re-garding r e n t a l practice. The rentalsman also has the important - 17 -(41) function of acting as mediator m landlord and tenant disputes. (42) Most of the rentalsman !s workload i s sett l e d by mediation. (43) In 1977, 10,597 f i l e s were opened, and of these, 1,367 resulted (44) . . . i n binding orders. Approximately nine hundred f i l e s were closed (45) per month, of which less than one hundred were subject to a hearing. In the f i e l d s where the rentalsman has exclusive j u r i s d i c t i o n , most of the orders made concerned the notice of termination of contracts. There were 754 cases where notice of termination was set aside, and only t h i r t e e n where the notice was upheld. Four hundred and eighty^-six orders of possession were issued. A good example of how much mediation i s used i s i l l u s t r a t e d i n the handling of security deposits. Security deposits make up the largest part of complaints dealt with by the rentalsman, numbering 2,809 cases (47) . . (48) i n 1977. Despite t h i s , only nineteen binding orders were issued. Procedural Requirements The Law Reform Commission said the following with regard to pro-cedural requirements: "We should also state at the outset our b e l i e f that the rentalsman, i n discharg-ing h is functions, ought to observe to the best of h i s a b i l i t y the rules of natural j u s t i c e , but ought not to be handicapped to any s i g n i f i c a n t extent by formal rules of procedure or evidence." (49) To what extent must the rentalsman comply with the rules of natural justice? The Legislature has enacted some procedural rules with which the rentalsman must comply, and the courts have widened t h i s <T• , , (50) f i e l d . - 18 -Notice There i s no mandatory r u l e i n the Act stating, that the rentalsman must give notice to concerned parties when he investigates, or intends (51) to hold a hearing. However, i n Redman v. Siegler, the County Court Judge held that the f a i l u r e of the rentalsman to hold a hearing, and to give notice thereof, was a breach of the rules of natural j u s t i c e . Right t o Parti c u l a r s As there i s no notice requirement enacted i n the Act, the question of particulars i s also l e f t t o the di s c r e t i o n of the rentalsman and subject to the common law rules of natural j u s t i c e . Hearings According to s. 48(1), the rentalsman may conduct hearings and investigations as he sees f i t . The wording i n t h i s section suggests that i t i s a matter of dis c r e t i o n . This would also be subject to the (52) common law, for example Redman v. Siegler. In s. 48(2), i t states i n t e r a l i a , that a.hearing may include a submission made orally,, including that which has been spoken over the telephone, or made i n w r i t i n g . Disclosure of Information Any information obtained i n a hearing conducted by the rentalsman should be communicated to the other party who should then be given the opportunity of rebutting the submission. This r i g h t i s stated i n s. - 19 -48(2), but appears to apply only to the information obtained i n what the rentalsman- regards as hearings. The opposite seems to hold true f o r any other information the rentalsman obtains, as i t i s stated i n s. 50(3): For the purposes of t h i s section and section 49, except with the consent of the person from whom the information was obtained or except f o r the purposes of t h i s Act, the rentalsman, the commission or an authorized person s h a l l not (a) communicate, or allow to be commun-icated, to another person informat-ion obtained by or on the behalf of the rentalsman or the commission under t h i s section or section 49, or (b) allow another person to inspect or to have access to information ob-tained by or on the behalf of the rentalsman or conmission under t h i s section or section 49. (53) Adj ournment The question of adjournment i s l e f t up to the d i s c r e t i o n of the rentalsman, as there are no guiding rules to be found i n the Act. A p p l i c a b i l i t y of the Rules of Evidence I t i s stated i n s. 48(1) that: In a matter before him, the rentalsman . . . (c) i n his d i s c r e t i o n , may receive and accept, on oath, a f f i d a v i t , or otherwise, such evidence or i n f o r -mation as he considers necessary and appropriate, whether or not such evidence or information would be admissible i n a court of law, The reason for the administrative agency's lack of formal rules (5 of evidence i s stated i n the report of the Law Reform Commission, - 20 -and i s as follows: "We have said that the rentalsman ought not, i n discharging h i s functions under the proposed Act, be bound by the rules of evidence. We recognize that t h i s , on i t s face, may appear to be a d r a s t i c proposal, but we are conscious of the fa c t that to impose the rules of e v i -dence would delay the rentalsman i n many cases, when we have said that the a b i l i t y to act quickly i s one of his most desirable a t t r i b u t e s . " (55) Counsel There i s nothing stated i n the Act giving involved parties the ri g h t to counsel. The report of the Law Reform Commission appears, however, to take t h i s r i g h t f o r granted. "As to the question r e l a t i n g to the le g a l profession, i t appears that t h i s i s scarcely an important issue. Table V i n Appendix D shows that under the present system of dispute solving, l e g a l representation i s not a s i g n i f i -cant factor. We see no'.reason why members of the l e g a l profession should not represent c l i e n t s before the rent-alsman." (56) Cross-Examination of Witnesses (57) The rentalsman i s not bound by the rules of evidence. The general provision in. s. 48(l)(c) gives him the r i g h t to use such i n -formation as he finds necessary. The Law Reform Commission said i n t h e i r report with regard to witnesses: "We have considered whether the re n t a l s -man ought to be granted the power to compel the attendance of witnesses, but have concluded that t h i s i s unnecessary. As the rentalsman, according to our - 21 -proposals, w i l l not be bound by the rules of evidence, he w i l l be able to act, i f he thinks f i t , i n the absence of evidence which might be required by a Court. There-fore, we would stop short of granting him power to issue subpoenas to persons." (58) This would not prohibit the rentalsman from using witnesses i f he feel s i t i s necessary or appropriate to do so on a voluntary basis. The proceedings are then naturally subject to the common law rules with regard to cross-examination. Hearing by Person Who Decides As the rentalsman i s given the power to investigate, hear, and make an order, he has also been made to hear the matter himself, and may not depend s o l e l y on the recommendations of the investigating o f f i c e r when making the f i n a l decision. This i s apparent from the case (59) of Greenhut v. Scott. The new Act, however, gives the rentalsman the r i g h t to delegate a l l h is powers, thus making i t easy f o r the rentalsman to comply with t h i s r u l e of natural j u s t i c e . On the other hand, there i s no provision i n the Act stating that the hearing o f f i c e r i s also the person who s h a l l decide the case. Reasons f o r Decision I t i s stated i n s. 48(l)(d): In a matter before him, the rentalsman ... (d) s h a l l , at the request of a party to a dispute, make h i s decisions i n proceedings under t h i s Act available i n w r i t i n g , . . . The l i m i t a t i o n s here are that i t must be a concerned party who must make the request to the rentalsman, before the rentalsman need give any - 22 -decisions i n w r i t i n g . The reasons for his decisions need not be stated, which leaves t h i s section somewhat lacking i n substance. Bias There are no rules or guidelines i n the Act constituting bias on the behalf of the rentalsman. The courts apply the rules of natural (61) j u s t i c e , as can be i l l u s t r a t e d i n the case of Greehhut v. Scott: "In passing I would l i k e to point out that even had the Act authorized the o f f i c e r to make the decision as to whether or not the notice of termination should be set aside, the decision could not be permitted to stand. Only a few months e a r l i e r , p r i o r to becoming a rentalsman's o f f i c e r , he appeared f o r a tenant i n a dispute with the same landlord; he helped organize a tenant's r i g h t s group in..the apartment block of the same landlord. Another mem-ber of that group was the present respond-ent Kathy Scott. As was stated by Pigeon J . i n Blanchett v. C.I.S. Ltd.,. [1973] 5 W.W.R. 547, L1973] S.C.R. 842, [1973] I.L.R. 1-532, 36 D.L.R. (3d) 561: "In my view the p r i n c i p l e to be applied i s the same f o r judges as f o r a r b i t r a t o r s . A reasonable apprehension that the judge might not act i n an e n t i r e l y impartial manner i s ground f o r d i s q u a l i f i c a t i o n as was held i n respect of an a r b i t r a t o r i n Ghirardosi v. B.C. Minister of Highways, 55 W.W.R. 750, [1966] S.C.R. 367, 56 D.L.R. (2d) 469." Those words have equal application to the present case. On the facts herein the o f f i c e r ' s r e f u s a l to di s q u a l i f y himself, having regard to the repeated requests of the applicants f o r him to do so., a sense of basic f a i r play should have dictated that he d i s q u a l i f y himself from having anything to do with the case once he became aware of the i d e n t i t y of the pa r t i e s . Equally i n -comprehensible i s the f a i l u r e of the rent-alsman to remove the o f f i c e r from t h i s case when the fear of the p o t e n t i a l bias of the o f f i c e r was pointed out to him." (62) THE FIRE MARSHAL The F i r e Marshal and his Local Assistants receive t h e i r powers from the F i r e Marshal Act. ( 1 ) The Act was f i r s t promulgated i n 1921 ( 2 ) but has since been amended i n order to keep up with the increasing r e -quirements of f i r e prevention. The Act lays down the broad powers of the F i r e Marshal, his Inspectors, and the Local Assistants. The more detailed r u l e s , with regard to what standards buildings must comply to (3) f o r f i r e safety, are enacted i n municipal by-laws. The main functions of the F i r e Marshal are: to investigate and (4) c o l l e c t information with regard to f i r e s i n the province; to i n -spect buildings and premises with an eye to f i r e prevention; and ( 6 ) to license movie theatres. He i s helped i n these duties by In-spectors and Local Assistants i n a l l municipalities throughout the province. The Local Assistants are usually the chiefs of the f i r e de-partments. The F i r e Marshal also has an advisory function. He i s to make (8) recommendations to firebrigades on questions of administration, (9) ( water supply and i n s t a l l a t i o n and maintenance of fire-alarm systems. His advice i s also c a l l e d f o r by the m u n i c i p a l i t i e s , i n the enactment and enforcement of by-laws f o r the prevention of f i r e . The J u r i s d i c t i o n of the F i r e Marshal Investigation of-Fires The investigation of f i r e s i s carried out by the Local Assistants. - 24 -Their duties are to report, i n w r i t i n g , a l l facts regarding the cause, (13) o r i g i n , and 'circumstances of the f i r e to the F i r e Marshal. The (14) F i r e Marshal can then hold an inquiry i f he deems i t necessary. Any interested person may attend the inquiry, and may be heard, e i t h e r i n person or through counsel. ^ 1 5^ I f the F i r e Marshal finds that there i s s u f f i c i e n t evidence to charge anyone with arson, or attempted arson, his findings are reported to the Attorney-General. Inspection of Fire-Hazards The F i r e Marshal i s responsible f o r f i r e prevention, and h i s powers and duties i n t h i s f i e l d are stated i n section 17 of the Act. His (17) Inspectors and Local Assistants carry-out the tasks of inspecting a l l buildings and premises which may be potential fire-hazards, and (18) ascertaining them as safe. These inspections are carried out i n accordance with provisions i n the Act and regulations provided by (19) Municipal Councils. Places of amusement, and public resorts are inspected at least once every two months, for example. I f the F i r e Marshal or h i s Inspectors are not s a t i s f i e d with the (21) safety of a building or premise, they may order, i n w r i t i n g , the owner or occupier of the place i n question to remove, destroy, repair, (22) or a l t e r the use or occupancy of the building or premises. I f there exists an impending, serious danger, the Inspector i s given cer-(23) tainemergency powers. The normal state of a f f a i r s i s , however, that inspections are carried out i n the regular fashion, and orders are (24) given under s. 17 of the Act. During 1977, there was a t o t a l of 91,418 inspections'carried out (25) i n the province, which resulted i n 1,544 orders. ' Of these some - 25 -(26) 50 - 60% were appealed under s..21(.2) to the F i r e Marshal. In Vancouver, an appeal board i s being established to handle appeals from orders given by Local Assistants. In t h i s way, i t i s hoped to reduce (27) the workload of the F i r e Marshal. Licensing The t h i r d power given to the F i r e Marshal i s the li c e n s i n g of (28) Moving-Picture Theatres, Kinematographs, and pr o j e c t i o n i s t s . The Act states i n s. 36(2), i n t e r a l i a : "The F i r e Marshal may i n his d i s c r e t i o n r e -fuse to grant a licence applied f o r under t h i s Part, and may suspend or cancel any licence issued under t h i s Part; . . ." Though undoubtedly a very wide discretionary power, the F i r e Marshal (29) has not i n f a c t revoked a licence "for years". Procedural Requirements Having discussed.the F i r e Marshal's duties and powers, the follow-ing statement from the Law Reform Commission may be of some i n -terest before the discussion of the procedure with which the F i r e Marshal must comply. "Whether or not the F i r e Marshal ought to comply with the canons of procedural f a i r -ness i n exercising h i s powers of entry would seem to depend, at least i n part, on.whether a potential emergency exists which would make i t undesirable that.he delay, and on whether the community can afford the cost of the Fire Marshal's holding a hearing before he enters a building. On the other hand, i f as a r e s u l t of exercising a power of entry the F i r e Marshal proposes that an owner should remove or destroy a building because - 26 -i t i s a fire-hazard, a better case might be made out for compliance with a f a i r procedure, although even i n t h i s instance the issue may be blurred i f the s i t u a t i o n i s one involving manifest emergency and the r i s k to the community i s high." ('31) The description here, with regard to procedural requirements, i s lim i t e d to inspection and l i c e n s i n g . The inves t i g a t i o n , on the other hand, r e s u l t s only i n a report with any eventual recommendations f o r (32) prosecution. Notice There i s nothing i n the Act which states that notice must be given. When carrying out routine inspections, the 'Fire Marshal does not need to give notice of when to expect an inspection. The Act gives him the r i g h t to enter any building, during reasonable hours, and inspect (33) i t . These routine inspections are treated i n the same manner as (34) are emergency inspections. According to the Act, no notice i s r e -quired even i n cases concerning the eventual withdrawal of a licence C 3 5) C 3 6) fo r a movie theatre. In R. v. Barry, i t was held that the Fi r e Marshal could order the prohibition of smoking i n theatres with-out holding a hearing and without n o t i f y i n g the interested p a r t i e s . In some cases, the order can act as a notice, because the order (37) can be appealed. On t h i s l e v e l , the interested.parties may make (38) themselves heard. The Act does not specify t o whom the order must be given. Should i t be given to the owner of the property, or the (39) occupant? In a case from Alberta, Fefferman v. McCargar, i t was held that the order should be given to both the owner and the occupant. In t h i s way, the occupant would have a f a i r chance to a hearing on - 27 -appeal. I t i s usual, i n B r i t i s h . Columbia, .'for the Inspectors to give the order to both the occupant and the owner. The orders are given on special forms which, include a description of where and when to appeal. Right to Particulars The F i r e Marshal or his Inspectors can investigate any building (42) i n the province, and i f i t i s f e l t that the building i s i n a state of d i s r e p a i r , or i s used or occupied i n such a way that f i r e i s a p o s s i b i l i t y , he can order that the hazardous contents be removed, or (43) that the building be destroyed or repaired. These are the qual-i f i c a t i o n s which have to be f u l f i l l e d before the order can be made. There i s , however,, nothing i n the Act which states that the order must include these qua l i f y i n g grounds, so as they can. serve as par t i c u l a r s on an appeal of the i n i t i a l order to the F i r e Marshal. (44) In Fefferman v. McCargar, where the order said "This Building i s a F i r e Hazard", i t was argued that i t ought to include the grounds. The judge held that an order should e n t a i l the qualifying grounds. He said: "This finding i s : "This Building i s a F i r e Hazard." I t w i l l be noted that t h i s does not set out any of the facts which under the section authorize an order being made. I t i s largely meaningless ^ as every building i s , to some extent, a f i r e hazard." . . . " . . . This order does not show that the facts e x i s t which under the section would authorize an order being made and, therefore, does not show j u r i s d i c t i o n . " (45) In B r i t i s h Columbia, the forms used by the Inspectors -have a place i n which to state findings. - 28 -Hearing There i s only one provision i n the Act requiring that a hearing may be conducted. Section 41 of the Act states that the o f f i c e r s may seize and remove, at any time, any f i l m from a movie theatre which they may consider to be i n poor physical condition and thus, a fire-hazard. The section continues: (2) The f i l m or r e e l of f i l m so seized s h a l l be retained by or placed i n the control of the Fi r e Marshal, and the Fi r e Marshal, a f t e r considering the fa c t s , and a f t e r hearing any person interested who requests to be heard, may declare the same t o be f o r f e i t e d to the Crown and dir e c t what d i s p o s i t -ion s h a l l be made of the same. The Fire^Marshal's orders invariably deal with property r i g h t s , an area which often receives special protection from the rules of natural j u s t i c e . However, the courts do not l i k e to put procedural r e s t r i c t i o n s (47) on the F i r e Marshal. In Re Fi r e Prevention Act, a case from Saskatchewan i n which a demolition order f o r an apartment block was made, the judge said: "The l e g i s l a t u r e i s supreme i n i t s f i e l d and The Fire Prevention Act, 1954, does not require any preliminary hearing, and i t sets out the procedure to be followed and which was followed by the respondent herein. In my opinion, i n the case at bar there was no denial of natural j u s t i c e i n that provision i s made i n the Act that he now can be heard before the f i r e commissioner and by way of t h i s a p p l i c a t -ion. I t i s possible that i n t h i s case of f i r e hazards the ri g h t s of individuals should be infringed upon for the common good and sometimes i t i s necessary to do t h i s i n an Emergency." (.48) (49) While i n R.'v. Barry, the judge said: "I think, therefore, there i s no doubt - 29 -that the F i r e Marshal has power to make an order without hearing evidence or n o t i f y -ing interested pa r t i e s . The nature of the orders to be made and the need to protect the public from hazards necessarily require that t h i s power be given." (50) The above examples i l l u s t r a t e the reluctance of the courts to re-quire that the F i r e Marshal apply the rules of natural j u s t i c e , at least i n the f i r s t instance, ( t h i s being the person who carries out the investigation and makes the order). (51) In Fefferman v. McCargar, i t i s indicated that the r e a l opportunity f o r anyone who i s aggrieved to get a hearing l i e s i n the appeal process: "There i s an even more fundamental ground on which the defendant can claim the order i s bad. The tenant was i n possession of the accommodation mentioned, and had es-tablished business there. He had gone to considerable expense i n f i x i n g up the premises. He would be put to expense and inconvenience and loss i f he had to close or move. He had a r i g h t to be heard .... He was not. served with the order and thus was not given an opportunity to appeal and present h i s objections t o the order and endeavour to have the order varied. This i s not i n accord with well-established p r i n c i p l e s of B r i t i s h j u s t i c e . " (52) In the B r i t i s h Columbia F i r e Marshal Act, there are a number of sections dealing with appeals from orders made by Local Assistants. For example, section 21(3) of the Act states, i n t e r a l i a , that the F i r e Marshal s h a l l promptly investigate every appeal under t h i s section, and affirm , modify, or revoke the order. However, nowhere i s i t stated that the F i r e Marshal must hold hearings before deciding the appeals. The procedure which has developed over the years i n B r i t i s h Columbia, i s that the F i r e Marshal does hold a hearing at the place of inspection i ( 5 3 ) a f t e r an appeal. - 30 -Disclosure of Information There i s nothing i n the Act which forces the F i r e Marshal or h i s o f f i c e r s to disclose any information or facts upon which they may have b u i l t t h e i r decision. Adjournment, A p p l i c a b i l i t y of Rules of Evidence, Counsel, Cross-Examination of Witnesses, and, Heard By Person Who Decides, have not been covered by the F i r e Marshal Act. Reasons f o r Decision The orders which the o f f i c e r s make i n ' f i r s t instance' do not appear to require any special form, other than that they must be i n (5M-) wr i t i n g . No reasons need be given f o r the order. An appeal concerning decisions made by Local Assistants to the F i r e Marshal i s a diffe r e n t matter. Section 21(3) of the Act reads: "The F i r e Marshal s h a l l promptly investigate or cause to be investigated every appeal under t h i s section, and af f i r m , modify, or revoke the order appealed from, and i n w r i t -ing communicate his decision and the reas-ons therefor t o the owner or occupier and the person who made the order." The above quotation i s the only provision found i n the Act, which states that the reasons f o r any decision must be given. (55) In R. v. Castle, the court held strongly that the reasons must be given by the F i r e Marshal. The F i r e Marshal had writ t e n , i n t h i s case, a l e t t e r which stated simply that following personal i n -spection of the building, he had decided to disallow the appeal. The judge refers t o t h i s l e t t e r while considering section 21 of the F i r e  Marshal Act i n the following: - 31 -"The section says he s h a l l , on dismissing the appeal, giving his reasons i n wr i t i n g . Subsection (1) of s. 23 of the Interpretat- ion Act, R.S.C.B. 1936, c. 1. says that the word " s h a l l " i s to be construed as impera-t i v e . I have considered a number of Authorities where the facts are s i m i l a r , . . . , with the facts of t h i s case, and those cases say that where interference with private property i s authorized by statute, the person authorized to inter f e r e must s t r i c t -l y adhere to the powers conferred, and proceed by the mode, ( i f any), indicated by the Act. I think s. (3) i s an absolute enactment and not directory. The F i r e Marshal Act has_ given the F i r e Marshal power to inter f e r e with private property, and i n so doing, i n my opinion he must f u l f i l l the requirements of the statute exactly, and proceed by the mode indicated i n the Act before he prosecutes an owner f o r not obeying his order. This he d i d not do when he f a i l e d to give h i s reasons i n w r i t i n g f o r dismissing the appeal." (56) Bias There are no provisions i n the Act which state when a F i r e Marshal, his Inspector, or Local Assistant are g u i l t y of bias. - 32 -THE LABOUR RELATIONS BOARD The Labour Relations Board, as i t i s constituted today, started to operate January 1st, 1974. ^ The procedures and powers of the Board are given i n the Labour Code of B r i t i s h Columbia, and the Labour (3) Code of B r i t i s h Columbia Regulations. I t i s made clear i n the Code, however, that the new Board i s continuing the work of the former Labour (4) Relations Board. The Board i s composed of a chairman, one or more vice-chairmen, and an equally proportioned group of members representing employers and (5) employees. Today the Board consists of eighteen members, s i x of whom represent the employers, and s i x who represent the employees. The (6) chairman and h i s f i v e vice-chairmen are appointed f o r a f i v e year ( 7 ^  term by the Lieutenant-Governor i n Council. (8) The members of the Board are divided to form panels. Each of (9) these panels have the same power and authority as the Board. The chairman may ref e r any matter to one of these panels. The Act lays down the rules according to how the panels should be constructed, and also gives quorum rules. The chairman can establish a special panel which gives a binding • • (13) decision on a question of law, when consulted by other panels. In t h i s way, problems r e s u l t i n g from inconsistant decisions with other panels are avoided. The Board can appoint a special o f f i c e r to carry out investigations, (14) and i f necessary, act as a mediator. He can also simply i n v e s t i -(15) gate and report his findings to the Board. - 33 -The J u r i s d i c t i o n of the Labour Relations Board The Labour Relations Board has j u r i s d i c t i o n over a vast area of i n d u s t r i a l r e l a t i o n s , continuing the tendency to move labour disputes (16) from the courts. The general provision, giving the purposes and objectives of the Board, i s s. 27 of the Labour Code. This section ex-presses the desire that the main function of the Board i s to promote harmonious i n d u s t r i a l r e l a t i o n s . The Labour Relations Board's j u r i s d i c t i o n covers the c e r t i f i c a t i o n (17) of trade unions, and "either exclusive, concurrent, or supervisory j u r i s d i c t i o n over every phase of c o l l e c t i v e bargaining law within the (18) Province". The investigation and adjudication of unfair labour (19) practice complaints f a l l under the Board's j u r i s d i c t i o n , as do s t r i k e s , lockouts, and picketing. I t seems i n order to also mention something about the processes i n the Labour Relations Board, t h i s being due to the fact that i t works using d i f f e r e n t techniques, such as investigation, mediation, and adjud-i c a t i o n . The chairman of the Board, Professor Paul Weiler, believes that there are two features which contrast the process of the Board with (21) that of the courts. The f i r s t i s that the Board has several tech-niques f o r solving disputes, "not j u s t adjudication", and the second i s the fact that the Board has control over the funnelling of disputes into (22) these procedures. He also says: "But i n the broad range of human c o n f l i c t which arises under a system of labour law, whether i t involves a charge of an unfair labour practice, a grievance under a c o l l e c -t i v e agreement, and now a complaint or i l l -egal work stoppage, the Board does make a determined e f f o r t to solve the problem by - 34 -mediation: a process i n which each side can f e e l that i t s interests have been considered and that i t has had some r e a l r o l e i n a r r i v -ing at the terms of the solution. Our object-ive i s to minimize the use of the formal l e g a l approach i n labour relations i n which lawyers throw 'rights' and 'duties' at each other. Our experience, whether i t be with unfair labour practice charges, or outbreaks of i l l e g a l s t r i k e s and picketing i s that we succeed about 60 percent of the time." (23) (24) In his a r t i c l e , Professor Weiler has also t r i e d to estimate the extent to which the d i f f e r e n t methods of solving labour disputes are used; "Nearly three-quarters of our caseload i s disposed of by pure investigation. More that 15 per cent are s e t t l e d through medi-ation. No more than 10 per cent are resolved i n the t r a d i t i o n a l adjudicative format." (25) The Board's workload i s estimated to be more than four thousand ( 26 ) cases per year, of which a large number are routine and r e p e t i t i v e . There are permanent i n d u s t r i a l r elations o f f i c e r s throughout the . (27) province who are normally the f i r s t to come i n contact with any (28) labour dispute. When a party has f i l e d a complaint with the Board, an o f f i c e r takes over. I t i s the o f f i c e r who hears a l l the parties con-cerned. The procedure i s very informal, consisting mainly of meeting with a l l the concerned parties giving them the opportunity to make t h e i r submissions, and i f necessary, t h e i r rebuttals. The investigation o f f i c e r then talk s to the parties separately, i n order to get any i n -formation which the persons involved do not want released i n front of the opposing party. Through t h i s procedure, 90% of the cases are i n -(29) formally settled. I t i s not unless the investigation o f f i c e r finds that an informal settlement i s impossible that the Board becomes d i r e c t l y involved. I t - 35 -receives a detailed and confidential report from the investigation o f f -i c e r , and the written submissions of the involved parties. These are used by the Board as a basis f o r i t s f i n a l decision, thus disposing (31) of the cases and reducing the workload. I t stands to reason that the Board must, sometimes, use i t s power (32) of adjudication i n order to make binding decisions. The chairman refers to the procedure used i n these cases i n the following passage: "When the Board must issue a binding decis-ion about the i l l e g a l i t y of a work stoppage, i t can afford the parties e s s e n t i a l l y the same procedure f o r presenting t h e i r case as they would have i n court ( a l b e i t i n a somewhat more relaxed, informal atmosphere): an o r a l hearing, evidence given under oath and subject to cross-examination, argument from counsel, and written reasons f o r decision." (33) Procedural Requirements (34) The Board has the power to determine i t s own practice and procedure. I t s d i s c r e t i o n on t h i s point, however, i s not without l i m i t s . The Board cannot r e s t r i c t the opportunity of the parties involved to make (36) (35) submissions and present evidence. There are also p a r t i c u l a r pro-cedural rules l a i d down both i n the Code i t s e l f , and i n the Regulations. Notice The Code and i t s Regulations have notice requirements under several d i f f e r e n t sections. Section 7 of the Regulations covers the majority of situations l i k e l y to be put before the Board. I t states that when an application i s made to the Board, the Board s h a l l give notice to a l l persons whom i t deems d i r e c t l y affected. - 36 -More s p e c i f i c notice requirements are given i n the following situate (37) ions; when a hearing i s to be held, when complaints regarding un-f a i r labour practice has been received, or when a hearing i s to be held to determine whether or not to c e r t i f y a trade-union as a bargain-4 . (39) mg agent. Right to P a r t i c u l a r s There are many rules which state that the concerned parties have a r i g h t to an opportunity to present t h e i r cases f u l l y . This implies the r i g h t to p a r t i c u l a r s , but i s f a r from being e x p l i c i t . Hearing That the Board s h a l l determine i t s own procedure and practice i s stated i n the Code, but the Regulations l a y down some general guidelines, which must be considered by the Board i n determining i t s own practice with regard to hearings. The Regulations state: "21. Where, i n any proceeding, the Board deems i t necessary to hear o r a l evidence or argument, the Board s h a l l f i x the time, date and place f o r a hearing and s h a l l give notice of the hearing to a l l parties con-cerned ." Sometimes the Legislature has found i t necessary, however, to confine the Board's d i s c r e t i o n when i t comes to deciding whether or not a hear-ing should be held. In a s i t u a t i o n where the Board must decide i f a trade-union should be c e r t i f i e d as a bargaining agent, the Legislature (41) has made i t compulsory f o r ,the Board to hold a hearing. I t seems possible to argue that, under ce r t a i n other circumstances, i t i s compulsory f o r the Board to hold a Hearing. The Regulations apparently make hearings mandatory i n s. 42 concerning binding orders by the Board under s, 28 of the Act ( s t r i k e s , lockouts and picketing), and concerning directions by the Board to employers not to hinder the formation of a trade-union. I t i s enacted that the Board may decide ce r t a i n enumerated matters within these areas "after conducting a hear-(42) ing". The following section, (s. 43), gives some exceptions to the hearing requirement. When the two sections are read together i t would appear that the majority of powers given i n the Regulations, s. 42, can be exercised only a f t e r a hearing. The Legislature seems to have f e l t that matters of s t r i k e s , lock-outs, and picketing, ( a l l of which were under the court's j u r i s d i c t i o n before the enactment of the Code), should be protected by a more j u d i c i a l approach to the fa c t findings, and therefor, a more formal process should be used. While under the heading of ''Hearings', i t seems appropriate to discuss not only o r a l hearings, but also the ri g h t s of the parties con-cerned to rebut the submissions from the other side. Granted, t h i s i s more a question of communication of material, however i t serves the same purpose as a hearing, that i s to give the involved parties a f a i r chance to present t h e i r case. Section 21 of the Code establishes the r i g h t f o r the Board to de-termine i t s own procedure, and continues: ". . . but s h a l l give f u l l opportunity to the parties to any proceedings to present evidence and to make submissions, . . ." I t i s made clear i n the Regulations that, when any application i s submitted to the Board, the Board must give notice to a l l persons (43) affected. This notice seems to have to include a copy of the - 38 -i n i t i a l a pplication, as a reply by persons affected s h a l l consist of an (44) admittance or denial of each statement m the application. When a reply has been received by the Board, i t must be communi-(45) cated to the applicant f o r further submissions. No further communication.is required-by the Regulations. The case Regina v. LRB  (B.C.); ex parte Loomis Armoured Car Service Ltd., ^ 4 6^ (a case which was decided under an act p r i o r to the Code), involved a c e r t i f i c a t i o n procedure. The employer r e p l i e d to an application submitted to the Board, which passed the .employers reply to the union. The union r e p l i e d to the employer's submission. No:.further communication took place. The court held that the employer had the r i g h t to have the union's new submission communicated to him, and thus went a step further than i s required i n the Regulations. Disclosure of Information With regard to applications and submissions from the involved p a r t i e s , there are no problems of disclosure because the Act states that these must be communicated. (See under the headings 'Notice' and 'Hearing'). The problem of access to information i s instead the d i s -closure of the material which i s submitted by the persons appointed by the Board to investigate disputes. There was a practice of non-disclosure by the Board, with regard to the i n d u s t r i a l r e l a t i o n s o f f i c e r ' s reports. This practice was up-held by the B r i t i s h Columbia Supreme Court i n the case Re Robinson, (47) L i t t l e S Co. Ltd. The employer, i n t h i s case, had challenged the fairness of the hearings due to the f a c t that the Board had refused to disclose the i n d u s t r i a l r e l a t i o n s o f f i c e r ' s report. Judge Toy said: - 39 -"In my respectful view, bearing i n mind the many obligations imposed on the i n -d u s t r i a l r e l a t i o n s o f f i c e r charged with r e s p o n s i b i l i t i e s of inquiry and i n many instances to attempt to s e t t l e disputes and. the statutory provisions requiring secrecy to those reports, I accept as appropriate the Board's past po l i c y of non-disclosure." (48) This practice of non-disclosure has since been enacted i n the Code with (49) an amendment by the Legislature. The p o s s i b i l i t y of non-disclosure reaches further than just with concern to the reports of the i n d u s t r i a l r e l a t i o n s o f f i c e r s . Evidence and information that the Board has obtained i s l e f t to the di s c r e t i o n of the Board as to whether or not i t should be disclosed t o the involved parties. Adjournment In the Regulations there are rules giving the Board the disc r e t i o n (51) to adjourn hearings, and to abridge or prolong the time l i m i t s (52) prescribed by the Regulations. This being the case, there i s nothing to prevent the Board from adjourning a hearing at the request of one of the concerned parties. There are, however, no rules which force the Board to adjourn when requested. A p p l i c a b i l i t y of the Rules of Evidence The section most important i n t h i s instance i s s. 19(1) of the Code, which states: "19...(1) The board may receive and accept such evidence and information on oath., a f f i d a v i t , or otherwise as i n i t s d i s c r e t -ion i t considers proper, whether or not - 40 -the evidence i s adniissible i n a court of law." This r u l e , giving the Board the di s c r e t i o n to accept evidence, i s r e -(53) peated i n the Regulations. As t h i s i s the case, no formal r u l e of evidence has to be complied with by the Board. Counsel Neither the Code nor the Regulations state s p e c i f i c a l l y whether counsel i s allowed at hearings. On the other hand, they do not state that the parties involved cannot be represented by. counsel. Despite the fact that the chairman has written that the Board's main objective i s to minimize.the use of a formal approach, where lawyers throw (54) 'rights' and 'duties' at each other, he seems to accept lawyers (55) when i t comes to a matter of adjudication. The Regulations also recognize counsel, as i s i l l u s t r a t e d i n section 15. Here i t states that any.document required to be given to' a party, can be given to the s o l i c i t o r or agent who i s representing the party. Cross-Examination of Witnesses Both the Code and the Regulations are s i l e n t on t h i s point, as i t appears to be adequate to r e f e r to the rules which state that the Board s h a l l give the parties concerned a f u l l opportunity to present evidence (56) and to make t h e i r submissions. From what Chairman Weiler has written, i t seems clear that the cross-examination of witnesses i s (57) acceptable when the Board holds a formal hearing. - 41 -Heard by Person Who Decides In a question of adjudication following a hearing, or that of decisions made a f t e r applications and written r e p l i e s , there does not appear to be any apparent problem i n complying with t h i s r u l e of natural j u s t i c e . On the other hand, i f one were to consider that the Board's decision i s based on the i n d u s t r i a l r e l a t i o n s o f f i c e r ' s report, the question i s put into a di f f e r e n t l i g h t . Is the Board r e a l l y only a 'rubber stamp'? Reasons f o r Decision Both the Code and the Regulations have rules about written decis-ions. The Code states: "23. The Board s h a l l make a l l i t s decis-ions i n proceedings under t h i s Act a v a i l -able i n writing f o r publication." Section 28 of the Regulations states, i n t e r a l i a : " A l l decisions and orders of the Board s h a l l be i n w r i t i n g and a l l parties affected shall.be n o t i f i e d thereof." . B a s i c a l l y , these rules mean only that the Board need have i t s decision i n w r i t i n g , they do not force the Board to give any written reasons f o r i t s decision. Bias The problem of impartial and biased decision-makers becomes p a r t i c -u l a r l y d i f f i c u l t i n an administrative t r i b u n a l where i t i s constituted on the t r i p a r t i t e model. The whole purpose of such a composition i s to have people represent "different sides". - 42 -Neither the Code nor the Regulations give any rules regulating the question of when a member of the Board, through, a special interest i n any p a r t i c u l a r case, has a l i k e l i h o o d of being biased. ^ 5 8^ On the other hand, the courts have found members of a board biased under c e r t -a i n circumstances, despite the t r i p a r t i t e composition of a Labour Re-latio n s Board. In the case of Regina v. Ontario Labour Relations Board; Ex parte (59) H a l l , the Ontario High Court held that i n order to establ i s h bias, one must use an objective t e s t , which i s to consider-if a "reasonable person i n a l l the circumstances might suppose that there would be an • . p „ (60) improper interference". The d i s t i n c t i o n between the membership i n a trade-union of a member on the Labour Relations Board, and membership which constitutes bias i s well distinguished i n the headnote of the aforementioned case: "There i s a d i s t i n c t i o n between mere member-ship i n a trade-union by a member of the Labour Relations Board and the holding of executive o f f i c e i n a central labour body by such a member; and where he i s such an o f f i c e r (and indeed the chief executive o f f i c e r ) and i s charged i n that capacity to carry out p o l i c i e s of the central labour party body which include, i n t e r a l i a , the promotion of the interests of cer t a i n a f f i l -iated unions and a concerted drive to oust as bargaining agents certain other unions not associated i n the central body, he should d i s q u a l i f y himself from s i t t i n g i n a c e r t i f i -cation proceeding where there i s a contest f o r bargaining ri g h t s between one of the unions opposed by i t . P r ohibition w i l l go to the Labour Relations Board i n such a case i f he s i t s as a member." (61) The B r i t i s h Columbia Court of Appeal held i n Regina v. B r i t i s h  Columbia Labour Relations Board that a paid union o f f i c i a l can not s i t on a case c e r t i f y i n g a l o c a l union, which i s a member of the - 43 -(central) union paying the o f f i c i a l . Even i f he should d i s q u a l i f y him-s e l f from taking part i n the decision, yet remains with the Board dur-ing the proceedings and i n the private session, however s i l e n t he may be, there i s a reasonable apprehension of bias. This leaves the Board's decision open to c e r t i o r a r i proceedings i n which to establish a breach ( 63) of the rules of natural j u s t i c e . - 44 -CHAPTER I I TWO ADMINISTRATIVE PROCEDURAL CODES Some common law j u r i s d i c t i o n s have found the rules of natural jus-t i c e and the inconsistent procedural enactments i n the tribunals' enabl-ing statutes so unsatisfactory that they have enacted administrative procedural codes to apply to a l l administrative decision-makers. In Canada, the provinces of Alberta and Ontario ^ have ( 3) enacted minimum procedure acts. The Federal Government and most of (4) the states i n the United States of America have also enacted admin-i s t r a t i v e procedure acts. England, A u s t r a l i a , New Zealand and the Fed-(5) e r a l Government of Canada, on the other hand, have f e l t that a mini-mum procedure act i s not a good solution to the procedural problem i n the administrative process. This chapter consists of a description of the solutions used i n Ontario and the United States. ^ The purpose of t h i s i s to see i f the code approach i s a successful method to use i n order to reform the administrative procedure. - 45 -THE STATUTORY POWERS PROCEDURE ACT IN ONTARIO (8) In 1964, a Royal Commission of Inquiry i n t o C i v i l Rights was established by the Government of Ontario. The Chief Justice of the High Court of Ontario, Mr. J.C. McRuer, was appointed 'Commissioner'. (9) The Royal Commission submitted reports with suggestions f o r new l e g i s l a t i o n s to protect the c i t i z e n s from encroachment of t h e i r c i v i l r i g h t s through government action. In 1971, the Legislature enacted a number of statutes, designed to implement the recommendations i n the McRuer Report concerning adminis-t r a t i v e procedure: The Statutory Powers Procedure Act, The Public  Inquiries Act, and The J u d i c i a l Review Procedure Act. The Statutory Powers Procedure Act deals with the rules with which administrative agencies must comply. I t could be c l a s s i f i e d as being a c o d i f i c a t i o n of the rules of natural j u s t i c e . The McRuer Report said: "Much advantage i s to be gained from setting out s p e c i f i c rules f o r the guidance of those exercising statutory powers, even though many of them are a mere c o d i f i c a t i o n of the common law. Not only w i l l they know the procedure they must follow, but those who have matters before tribunals w i l l know the co n t r o l l i n g procedure." (13) The Commission studied the rules of natural j u s t i c e and investigated how and when these rules should be applied to administrative agencies, and to whom they should apply. I t examined the way i n which s i m i l a r problems had been solved i n the United States and i n the United Kingdom, and recommended that "the best" be taken from the solutions of the two countries, and be considered i n the handling of the administrative - 4 6 -procedure i n Ontario. The McRuer Report therefore made a proposal f o r both minimum procedural r u l e s , as found i n the U.S., and the estab-lishment of a Rules Committee, as found i n the U.K. The Report stated: "Minimum and basic procedural standards enacted by l e g i s l a t i o n have d i s t i n c t value. They are i n nature of a proced-u r a l B i l l of Rights, c o n t r o l l i n g d r a f t s -men and guiding administrators and the courts. The time has come when the Legislature should declare i n clear terms those minimum safeguards to which every c i t i z e n i s e n t i t l e d i n the admin-i s t r a t i v e processes of government. We therefore recommend the enactment of a Statutory Powers Procedure Act with provision f o r a Statutory Powers Rules Committee." (15) This i s exactly what was done by the Ontario Legislature i n 1971. The Statutory Powers Procedure Act consists of two main parts. Part I deals with minimum r u l e s , while Part 2 establishes a Rules Committee. What does t h i s l e g i s l a t i o n e n t a i l , and what i s i t s scope? A p p l i c a b i l i t y of the Minimum Rules The scope of the Act i s b a s i c a l l y defined i n section 3(1), read t o -gether with certain d e f i n i t i o n s i n section 1. Section 3(1) states: 3.(1) Subject to subsection 2, t h i s Part applies to proceedings by a t r i -bunal i n the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the t r i b u n a l i s required by or under such an Act or otherwise by law to hold or to afford to the parties to the proceed-ings an opportunity f o r a hearing before making a decision. Section 1(1), (d) and (e) states: 1.(1) In t h i s Act, - 47 -(d) "statutory power of decision" means a power or r i g h t , conferred by or under a statute, to make a decision deciding or prescribing, ( i ) the l e g a l r i g h t s , powers, p r i v -ileges , immunities, duties or l i a b i l i t i e s of any person or party, or ( i i ) The e l i g i b i l i t y of any-; person or party to receive, or to the con-tinuation of, a benefit or licence, whether he i s l e g a l l y e n t i t l e d thereto or not; (e) " t r i b u n a l " means one or more persons, whether or not incorporated and however described, upon which a statutory power of decision i s conferred by or under a statute. "To make a decision deciding or prescribing" has been interpreted to mean that only a f i n a l decision i s subj ect to 'the minimum r u l e s . The r u l e s , therefore, do not apply to investigations or to advisory re-(16 ) ports and recommendations. These sections are naturally also sub-ject to the c o n s t i t u t i o n a l l i m i t a t i o n s , meaning that they only apply to p r o v i n c i a l l e g i s l a t i o n . The d i f f i c u l t problem i n acininistrative law of c l a s s i f y i n g agencies ' j u d i c i a l ' , ' q u a s i - j u d i c i a l ' , or 'administrative' has been avoided through the use of the words, "deciding or prescribing" i n s. 1(1)(d). "Note the use of the words "deciding or prescribing". This i s one of the most s i g n i f i c a n t features of the Act i n that .the use of both words i n the context of " r i g h t s " , " p r i v i l e g e s " , "benefits", etc. means, at least at f i r s t blush, that i t i s no longer necessary to determine whether the t r i b u n a l i s acting j u d i c i a l l y or q u a s i - j u d i c i a l l y as opposed to admin-i s t r a t i v e l y , as a condition of entitlement. Had the above d e f i n i t i o n used only the word "deciding", then a statutory power of de-c i s i o n under the Act would have been r e -s t r i c t e d to j u d i c i a l or q u a s i - j u d i c i a l - 48 -(d) "statutory power of decision" means a power or r i g h t , conferred by or under a statute, to make' a decision deciding or prescribing, ( i ) the l e g a l r i g h t s , powers, p r i v -i l e g e s , immunities, duties or l i a b i l i t i e s of any person or party, or ( i i ) the e l i g i b i l i t y of any person or party to receive, or to the con-tinuation of, a benefit or licence, whether he i s l e g a l l y e n t i t l e d thereto or not; (e) " t r i b u n a l " means one or more persons, whether or not incorporated and however described, upon which a statutory power of decision i s conferred by or under a statute. "To make a decision deciding or prescribing" has been interpreted to mean that only a f i n a l decision i s subject.to the niinimum rules. The r u l e s , therefore, do not apply to investigations or to advisory r e -(16 ) ports and recommendations. These sections are naturally also sub-je c t to the c o n s t i t u t i o n a l l i m i t a t i o n s , meaning that they only apply to p r o v i n c i a l l e g i s l a t i o n . The d i f f i c u l t problem i n administrative law of c l a s s i f y i n g agencies ' j u d i c i a l ' , ' q u a s i - j u d i c i a l ' , or 'administrative' has been avoided through the use of the words, "deciding or prescribing" i n s. l ( l ) ( d ) . "Note the use of the words "deciding or prescribing". This i s one of the most s i g n i f i c a n t features of the Act i n that the use of both words i n the context of " r i g h t s " , " p r i v i l e g e s " , "benefits", etc. means, at least at f i r s t blush, that i t i s no longer necessary to determine whether the t r i b u n a l i s acting j u d i c i a l l y or q u a s i - j u d i c i a l l y as opposed to admin-i s t r a t i v e l y , as a condition of entitlement. Had the above d e f i n i t i o n used only the word "deciding", then a statutory power of de-c i s i o n under the Act would have been r e -s t r i c t e d to j u d i c i a l or q u a s i - j u d i c i a l - 49 -decisions. But the word "prescribing" encompasses purely adniinistrative de-cisions and thus appears to remove the necessity of performing the type of verbal gymnastics which have permeated t h i s area of the law." (17) On the other hand i t i s held i n Re Robertson et a l . and Niagara (18 ) South Board of Education, that not a l l administrative decisions are statutory powers of decision, and i t appears from the judge's reas-oning that the o l d d i s t i n c t i o n between q u a s i - j u d i c i a l , j u d i c i a l and ad-ministrative tribunals i s s t i l l v a l i d . However, t h i s judgement i s by no means clear and i t i s d i f f i c u l t to draw any conclusions from i t . The judge said: "The r i g h t or p r i v i l e g e of the a p p l i -cants to have t h e i r children attend a p a r t i c u l a r school was not a " l e g a l " right, or p r i v i l e g e within the meaning of those statutes. The decision to close the school was an administrative decision and was not rendered j u d i c i a l or q u a s i - j u d i c i a l because i t was openly opposed by the applicants." (19) Section 3(1) l i m i t s the scope of the a p p l i c a b i l i t y of the minimum rules to tribunals which are required, by or under an act, to hold a hearing. These l i m i t a t i o n s are, however, avoided by the use of the words "otherwise by law". These words catch a l l those tribunals which do not have e x p l i c i t provisions f o r hearings, but which are s t i l l subject to the rules of natural j u s t i c e . Naturally, t h i s does not avoid the un-certainty as to which tribunals are, or are not, subject to natural j u s t i c e , but once t h i s has been established, i t does c l a r i f y whether they do, or do not, have to conform to the minimum r u l e s . I t appears that the remaining uncertainty w i l l be removed: "The application of the--rules where a hearing i s required "otherwise by law" - 50 -i s a t r a n s i t i o n a l provision pending r e -view and amendment of the e x i s t i n g statutes to provide expressly f o r hear-ings i n appropriate instances. A l l statutes of Ontario establishing t r i -bunals are now being reviewed f o r t h i s purpose. When the amendments have been completed, the expression "otherwise by law", w i l l cease to have significance except as a residu a l protection." (20) On the other hand, i n Re Carrington's Building Centre Ltd. and (21) Ontario Housing Corporation, there was no e x p l i c i t hearing require-ment i n the involved tribunal's enabling statute and i t would appear that the court had forgotten the words "otherwise by law". The facts were that Carrington's was a supplier of building materials. They f i l e d a notice of claim under the Public Works Creditors Act i n regard to materials supplied to two builders. A hearing was held on the behalf of the Ontario Housing Corporation by a Mr. Caputo, to determine the comp-ensation f o r a l l creditors. Mr. Caputo recommended that Carrington's claim should be paid i n f u l l . However, the decision-makers, the Ontario Housing Corporation's board of d i r e c t o r s , did not accept Carring-ton's claim. No reason was given by the board f o r t h e i r decision not to allow Carrington's claim and they also denied Carrington a copy of Mr. Caputo's report. Carrington submitted to the Court, i n t e r a l i a , that the Statutory  Powers Procedure Act was applicable to the board of directors. The r a t i o seems to be that the Public Work Creditors Act did not have a hearing requirement, and as a r e s u l t the Statutory Powers Procedure Act did not apply. The judge said: " I t appears to us, under the above mentioned section,'that the Statu- tory Powers Procedure Act, 1971 does not apply to proceedings under the - 51 -Public Works Creditors Payment Act. Under the l a t t e r Act, a t r i b u n a l i s not required to hold, nor to a f f o r d to the parties of the pro-ceedings the opportunity f o r , a hearing before making a decision." (22) There are also e x p l i c i t exceptions frcm the a p p l i c a b i l i t y of the nrinimum procedure r u l e s . Section 3(2) exempts, i n t e r a l i a , the Assembly, the Supreme Court or any other.court, a j u s t i c e of the peace, a labour a r b i t r a t o r and a coroner's inquest. The section then makes some very v i t a l exemptions. (2) This Part does not apply to proceedings, . . . (g) of one or more persons r e -quired to make an investigation and to make a report, with or without recommendations, where the report i s f o r the information of the person to whom i t i s made and does not i n any way l e g a l l y bind or l i m i t that person i n any decision he may have power to make; (h) of a t r i b u n a l empowered to make regulations, rules or by-laws i n so f a r as i t s power to. make reg-ulations, rules or by-laws i s con-cerned . This makes i t clear that both investigation and r u l e making powers given to administrative agencies are exempt frcm compliance with the Act's procedural safeguards. The Legislature can also exempt tribunals from complying with the :  Statutory Powers Procedure Act, through the use of expressed language. Section 32 of the Act states: 32. Unless i t i s expressly provided i n any other Act that i t s provisions and regulations, rules or by-laws made under i t apply notwithstanding anything i n t h i s Act, the provisions - 52 -of t h i s Act and of rules made under section 33 p r e v a i l over the provis-ions of such other Act and over regulations,.rules or by-laws made under such other Act which c o n f l i c t therewith. This section also gives the Legislature the a b i l i t y to be more f l e x i b l e as they can establish tribunals which have to conform only to special sections of the Act. Another way of achieving the tribunal's necessary speed and f l e x i b i l i t y i s i l l u s t r a t e d i n section 4. This section states that any proceeding may be disposed of by agreement, consent or decision, without a hearing or other natural j u s t i c e require-ments, i f the parties involved waive t h e i r r i g h t s to these procedural safeguards. Procedural Requirements As has been stated, the Act i s , more or l e s s , a c o d i f i c a t i o n of the rules of natural j u s t i c e . Under t h i s heading, a description of the rules of the Act with which the Ontario administrative agencies must comply, w i l l be dealt with under the headings which were explained i n the Introduction. Notice The Act states i n section 6 CD, that the parties, s h a l l be given reasonable notice.of the hearing. This i s mandatory, but no further guidelines are given to c l a r i f y exactly what 'reasonable notice' means. For the sake of interpretation, one must return to the common law rules which say what i s reasonable under certain circumstances. The answer i s that the notice i s considered to be a reasonable one, only - 53 -i f i t allows the involved persons a f a i r chance to-prepare t h e i r case. In section 6(2), the Act also gives rules which define what a notice must e n t a i l . There must be a statement of the time, place and purpose of the hearing, and a reference to the statutory authority (23) under which the hearing i s held. The notice must also include a further statement warning the party that the t r i b u n a l may proceed i n his absence, i n which case no further notice w i l l be given to him i n (24) the following proceedings. In a rather recent case, Re Seven-Eleven Taxi Co. Ltd. and City of (25) Brampton, the judge said that a reasonable notice also must e n t a i l p a r t i c u l a r s , and i n so dd.ing, went a step further than section 6: "Notice must be s u f f i c i e n t to give any person, whose rig h t s are i n jeopardy, an opportunity to respond to what i s , i n e f f e c t , the charge against him. Anything short of that i s not "reason-able notice". I t i s c r y s t a l clear that Seven-Eleven Taxi was given no idea of what was the basis upon which i t s licences were being considered f o r cancellation." (26) Section 24 of the Act deals with a special problem concerning no-tice requirements. I f the t r i b u n a l i s of the opinion that the parties are so numerous, or i f f o r any other reason i t i s impractical to serve notice i n the usual manner, notice may be given through public adver-tisement or by any other means which the t r i b u n a l finds appropriate. This section deals not only with the question of having too many i n -volved p a r t i e s , i t also gives the t r i b u n a l a wide di s c r e t i o n i n two areas. The section applies to "any other reason", and the notice can be given "otherwise as the t r i b u n a l may d i r e c t " . Professor Atkey has said the following concerning the Act, with regard to the tribunal's discretion: "Indeed, the two loopholes i n t h i s section may w e l l constitute d i r e c t statutory authority permitting a tr i b u n a l t o e f f e c t i v e l y v i t i a t e the s p e c i f i c notice requirements of section 6." (27) The Right to Particulars Section 8 of the Act states: 8. Where the good character, pro-p r i e t y of conduct or competence of a party i s an issue i n any proceed-ings, the party i s e n t i t l e d to be furnished p r i o r to the hearing with reasonable information of any a l l e -gations with respect thereto. As i s i l l u s t r a t e d i n t h i s section, i t i s not necessary f o r a l l t r i b u -nals always to give p a r t i c u l a r s to an involved party. The hearing must deal with the involved person's good character, propriety of conduct or competence before the Act can give him the safeguard of p a r t i c u l a r s . (28) However, as shown i n Re Seven-Eleven Taxi, the common law seems to require that p a r t i c u l a r s be given even of matters other than those enumerated i n section 8. I t i s noteworthy that t h i s section i s also li m i t e d to cover only'reasonable information" i n these cases, not a l l information. I t i s the tribunal's r e s p o n s i b i l i t y to make certain that t h i s r u l e has been honoured, before the hearing i s to take place. "The duty of compliance f a l l s upon the administrator or person making the allegations or proposing to put the documentary evidence or report before the hearing. The function of the tri b u n a l i s to s a t i s f y i t s e l f at the hearing that the provisions have been complied with so that the party or applicant or licensee i s not surprised by allegations or evidence. Where the - 55 -tr i b u n a l f e e l s that these provisions have not been complied with to the prejudice of the party or the a p p l i -cant or licensee, the t r i b u n a l should grant an adjournment." (29) Hearings Before the Act i s applicable the tribunal's enabling statute must e n t a i l a hearing requirement. Hearings are, however, not neces-s a r i l y mandatory i n a l l proceedings. The r i g h t to a hearing can be waived by the p a r t i e s , or there can be consent or agreement between (31) the involved parties making a hearing unnecessary. The Act lays down some basic rules with regard to hearings i n section 9. I t states that as a general r u l e the hearing should be open to the public. There are two exceptions to t h i s r u l e : matters involv-ing public security, and intimate f i n a n c i a l or personal matters. In (32) these cases the tr i b u n a l may hold a hearing i n camera. I t i s , however, d i f f i c u l t to r e a l l y appreciate what the hearing (33) requirement r e a l l y e n t a i l s , f o r example how formal must i t be? One might mention a p a r t i c u l a r part of one section which gives very general provisions with regard to the involved party's ri g h t s when at a hear-ing. The provision i n question i s found i n section 10, which states i n t e r a l i a : 10. A party to proceedings may at a hearing, . . . (b) c a l l and examine witnesses and present his arguments and submissions; Adjournment Section 21 of the Act, gives two alternatives with regard to how - 56 -an adjournment can be allowed. The f i r s t p o s s i b i l i t y i s that the t r i b u n a l can decide at i t s own di s c r e t i o n that a hearing be adjourned. The second p o s s i b i l i t y i s that i f one of the involved parties can prove that a f a i r hearing can be held only a f t e r the t r i b u n a l has adjourned the present hearing, the t r i b u n a l can do so. Here the burden of proof l i e s with the party, who must show the hearing t r i b u n a l that adjourn-ment i s necessary. "Although t h i s provision only gives a power to the t r i b u n a l to adjourn pro-ceedings, i t should not refuse an ad-journment and i n s i s t that the hearing goes on, where a party w i l l be pre-judiced. On the other hand, grounds fo r an adjournment should be substan- -"tialand an adjournment should not be allowed to be used as a device f o r causing delay. The governing consi^ deration of fairness.rthat underlies the procedural rules of natural j u s t i c e should be given effect to by the t r i -bunal i n exercising i t s power." (34) A p p l i c a b i l i t y of the Rules of Evidence Section 15 of the Act c o d i f i e s the ordinary practice i n administra-t i v e law of not forcing the tribunals to comply with the formal rules of evidence. This permits a more informal and expeditious hearing proce-dure, one of the main purposes f o r the establishment of tribunals. Section 15 states that a t r i b u n a l may admit any o r a l testimony, document, or any other thing relevant to the subject matter and not un-duly r e p e t i t i o u s , as evidence. There are also some r e s t r i c t i o n s : 15(2) Nothing i s admissible i n e v i -dence at a hearing, (a) that would be inadmissible i n a court by reason of any p r i v i l e g e under the law of evidence; or - 57 -(b) that i s inadmissible by the statute under which the pro-ceedings arise or any other statute. An example of evidence which would be regarded as inadmissible accord-ing to subsection 2(a) i s that the s o l i c i t o r can not be compelled to give evidence of information given to him by h i s c l i e n t when he has t h i s p r i v i l e g e i n a court. The same would apply to the party's (35) spouse. Section 15(3) also provides an exception from the general r u l e i n section 15(1). I t i s that i f any act expressly l i m i t s the extent to which testimony, documents, or any evidence may be admitted, the act i n question s h a l l p r e v a i l . Counsel The Act gives a party the r i g h t to counsel i n a very stra i g h t -forward manner. The r i g h t i s without l i m i t a t i o n s . Section 10 states, i n t e r a l i a : "A party to proceedings may at a hearing, (a) be represented by counsel or agent; . . . " (36) The agent does not need to be a " l e g a l l y q u a l i f i e d p r a c t i t i o n e r " . However, the tr i b u n a l may exclude the counsellor or agent from a hear-ing, depending on h i s conduct. Cross-Examination of Witnesses As previously i l l u s t r a t e d , a party to proceedings under the Act i s (38) allowed to c a l l and examine witnesses. There are also rules which - 58 -regulate the cross-examination of witnesses. Section 10(c) states, i n t e r a l i a : 10. A party to proceedings may at a hearing, . . . (c) conduct cross-examinations of witnesses at a hearing reason-ably required f o r a f u l l and f a i r disclosure of the facts i n r e l a t i o n to which they have given evidence. The tribunals have also been given the e x p l i c i t power to l i m i t further cross-examination when s a t i s f i e d that the examination has s u f f i c i e n t l y (39 ) disclosed a l l the facts given by the witness. Heard by Person Who Decides I t i s possibly, taken f o r granted by the Legislature that, as there i s now a hearing requirement, the t r i b u n a l which presides at the hear-ing w i l l also be the one to decide. However, the fact i s , there are no rules i n the Act to provide f o r the manner which the t r i b u n a l should make i t s decision. This being the case, t h i s r u l e of natural j u s t i c e i s not codified. This leaves any involved persons r e l y i n g on the common law r u l e s , i f the tr i b u n a l s ' own statutes do not regulate t h i s question. Reasons f o r Decision The form of the tr i b u n a l s ' decisions are regulated i n section 17 of the Act, which states: 17. A t r i b u n a l s h a l l give i t s f i n a l de-c i s i o n and order, i f any, i n any proceed-ings i n writing and s h a l l give reasons i n writing therefore i f requested by a party. - 59 -This means the Act ensures that a party i s able to f i n d out the reasons f o r a decision, a protection which has not been given under the common law. Mundell, i n h i s Manual of Practice, states what the reasons should consist of: "The reasons should set out a f u l l ex-planation of the decision arrived at by the t r i b u n a l . Findings of fact should be stated.separately from the propositions of law upon which the decision i s based." (41) Bias The Act does not include any.provision regarding i m p a r t i a l i t y or bias i n the administrative process. The reason f o r t h i s i s that a d i s t i n c t i o n has been made between procedural rules of natural j u s t i c e and bias rules of natural j u s t i c e . The l a t t e r i s not regarded, by some, (42) as a procedural question. The common law i s s t i l l the source of reference f o r deciding when, or under what circumstances, a member of a tr i b u n a l should be regarded as having been biased. - 60 -THE ADMINISTRATIVE PROCEDURE ACT IN THE UNITED STATES (43) The Federal Adnunistrative Procedure Act was enacted June (44) 11th, 1946 when the President of the United States gave h i s approval. The origins of the Act can be found i n the early 1930's, when the rapid growth of administrative agencies was seen as a threat (45) to due process, and a s a c r i f i c e of private r i g h t s . In 1933 the American Bar Association created a Special Committee on Administrative Law, and i n the years following, they pressed f o r " l e g i s l a t i o n to (47) assure the fundamentals of due process". In 1938, i t was time fo r government intervention. President Roosevelt requested the Attorney General to create a committee to study administrative procedures and make recommendations f o r changes. The appointed committee, The Attorney General's Committee on Adminis-. . (49) t r a t i v e Procedures, consisted of lawyers, scholars and administrators. The Committee investigated the operations of some of the more im-portant administrative agencies i n great d e t a i l . Twenty-seven mono-graphs were published on i t s findings. A F i n a l Report was also (51) submitted, including recommendations. Extensive hearings were (52) held before a subcommittee of the Senate i n 1941 but due to the war, (53) work on the Act came to a hal t u n t i l 1945. At t h i s time, a B i l l was drafted and passed by both Houses of Congress without a dissenting (54) vote and on June 11th, 1946 the President signed the Administrative (55) Procedure Act, or APA as i t i s commonly described. Generally speaking, APA i s said to have four basic purposes; 1) to inform the public of agencies, organizations, procedures and ru l e s ; - 61 -2) to provide, f o r public p a r t i c i p a t i o n i n the rul e making process; 3) to prescribe uniform standards f o r formal r u l e making and adjudi-(56 ) catory proceedings; and 4) to restate the law of j u d i c i a l review. The sections on uniform standards are naturally of main interest here. Most states have enacted minimal procedural acts, modelled a f t e r the Federal Adnrinistrative Procedure Act or a f t e r the Model State Admin-(57) i s t r a t i v e Procedure Act. The Model Act was formed at the same time as the Federal Act, and was approved of by the National Conference of Commissioners on Uniform State Laws. A p p l i c a b i l i t y of the Minimum Rules APA i s made to apply to a l l government agencies, with some excep-tio n s . The d e f i n i t i o n of an agency i s determined by the following: "agency" means each authority of the Government of the United States, whether or not i t i s within or sub-je c t to review by another agency,... (59) Following t h i s general d e f i n i t i o n covering a l l sides of government autho-r i t i e s . , the exemptions are l i s t e d . Amongst those which are exempt are: The Congress, the courts, the Government of the D i s t r i c t of Columbia and courts martial. APA covers a l l federal administrative agencies, without any r e f e r -ence to whether they are j u d i c i a l , q u a s i - j u d i c i a l , or administrative. However, APA makes v i t a l d i s t i n c t i o n s depending on the functions of the agencies. There are di f f e r e n t regulations regarding r u l e making and adjudication. I t i s therefore of fundamental importance to make t h i s c l a s s i f i c a t i o n : - 62 -(i4) "rule" means the whole or a part of an agency statement of general or pa r t i c u l a r a p p l i c a b i l i t y and future effect designed to implement, i n t e r -pret, or prescribe law or poli c y or describing the organization, proce-dure or practice requirements of an agency and includes the approval or prescription f o r the future of rates, wages, corporate or f i n a n c i a l struc-tures or reorganizations thereof, prices f a c i l i t i e s , appliances, ser-vices or allowances thereof or of valuations, costs, or accounting, or practices bearing on any of the fore-going; (61) (5) "rule making" means agency process for formulating, amending, or repealing a r u l e ; (62) This enumeration of what i s regarded as rule making i s not exclusive. (63) The Attorney General's Manual on APA says that t o determine whether an agency i s "rule making", one must consider the purposes of the statute involved, and the considerations the agency has to make. The Manual continues::. "Rule Making i s agency action which regulates the future conduct of either groups of persons or a single person; i t . i s e s s e n t i a l l y l e g i s l a - -t i v e i n nature, not only because i t operates i n the future but also be-cause i t i s primarily concerned with p o l i c y considerations." (65) Adjudication i s defined as: (6) "order" means the whole or a part of a f i n a l d i s p o s i t i o n , whether affirmative, negative, i n j u n c t i v e , or declaratory i n form, of an agency i n a matter other than r u l e making but including l i c e n s i n g ; (66) (7) "adjudication" means agency process f o r the formulation of an order; (67) - 63 -The Attorney General's Manual explains adjudication i n the follow-ing passage: "Conversely, adjudication i s concerned with the determination of past and . present r i g h t s and l i a b i l i t i e s . " (68) APA prescribes d i f f e r e n t minimum procedural rules according to whether the agency i s c l a s s i f i e d as r u l e making or adjudicative i n nature. For the purpose of t h i s t h e s i s , the following description w i l l be l i m i t e d to the l a t t e r . Procedural Requirements f o r Adjudication The minimum procedural safeguards apply to "every case of adjudi-cation required by statute to be determined on the record a f t e r oppor-tunity f o r an agency hearing", In order to make APA's minimum rules applicable, the statute which has established the agency must include a requirement f o r a hear-ing. A statute authorizing the agency to hold a hearing, ( i f deemed necessary), i s not enough to f u l f i l l the expressed hearing requirement. The same holds true f o r an agency which holds a hearing, though without being required to do so. I t does not have to comply with the Adminis-(71) t r a t i v e Procedure Act. Section 554 enumerates certain exemptions, f o r example: "a matter subject to a subsequent t r i a l of the law and the facts de novo i n a (72) court", and, "proceedings i n which decisions rest s o l e l y on m-(73) spections, t e s t s , or elections". The minimum procedural rules that an agency has to comply with are l a i d down i n sections 554 - 558 of APA. - 64 -Notice (74) Notice must include the time, place and nature of the hearing as w e l l as the l e g a l authority and j u r i s d i c t i o n under which i t i s to (75) (76) be held, together with the matters of fact and law asserted. This l a s t requirement means that i t i s necessary to advise the parties (77) of the l e g a l and factual issues involved. Right to Part i c u l a r s The notice requirement covers the question of par t i c u l a r s as w e l l . Hearings One of the objectives of APA i s to achieve a separation of func-tions within agencies. There are rules i n section 554 which separate the hearing o f f i c e r (or decision-maker) from'.the investigation and pror-secution. The investigator or prosecutor i s not allowed to "participate or advise i n the decision". This makes the American administrative process more " j u d i c i a l " as more of the courts' adversary system i s (78) adopted. The separation of functions within the agencies i s , on the other hand, not an absolute r u l e as there are some exceptions. Exempt are, fo r example, i n i t i a l l icensing decisions and the setting of certain rates. Disclosure of Information O f f i c i a l records should be made available to "persons properly and d i r e c t l y concerned" i n a case. Due to the fact that APA estab-lish e s a more adversary system i n the administrative proceedings, i t also guarantees that the investigator, or prosecutor, present t h e i r - 65 -information before the hearing o f f i c e r . However, there are no ex-p l i c i t rules which state that a party has the r i g h t to a l l the i n f o r -(81) mation available to the decision-maker. Adjournment There are no mandatory rules which set the standards f o r when an adjournment i s necessary. APA does state, however, that before f i x i n g the time f o r a hearing "due regard s h a l l be had f o r the inconvenience (82) and necessity of the parties or t h e i r representatives". A p p l i c a b i l i t y of the Rules of Evidence The rules concerning evidence are. found i n section 556(d) of APA, which proves that "any o r a l or documentary evidence may be received". I t i s , however,, up to the agencies' di s c r e t i o n to exclude material found to be i r r e l e v a n t , immaterial or unduly re p e t i t i o u s . The formal rules of j u d i c i a l evidence are not to be found here. The section however, does enact as a ru l e respecting burden of proof that "the proponent of (83) a r u l e or order has the burden of proof". Other statutes can, how-ever, provide by a di f f e r e n t r u l e . Counsel A party compelled to appear i n person before either an agency, or just a representative f o r the agency, has the right to use counsel. Cross-Examination of Witnesses APA allows a party the r i g h t to conduct a cross-examination, i f i t i s required f o r "a f u l l and true disclosure of the f a c t s . " I t i s - 66 -not an absolute r i g h t but merely a presumption that i t may be necessary to allow cross-examination i n order to give the person involved a f a i r chance to present h i s case. Heard by Person Who Decides Here, the general r u l e i s that the person who hears, should also decide. I f the agency does not hear the matter i t s e l f , but appoints an employee to be the hearing o f f i c e r i n accordance with APA, i t i s t h i s person who must make the i n i t i a l decision. There are, how-ever, p o s s i b i l i t i e s f o r the agency to require the whole record c e r t i -(87 f i e d from the hearing o f f i c e r , and then make the decision i t s e l f . I f there i s no inside appeal or review route the hearing o f f i c e r ' s ( 88) i n i t i a l decision becomes the agency's decision. Reasons f o r Decision Throughout the procedure of the agency, a record has to be kept of the proceedings which i s then made available to the parties concerned. The record must contain a l l decisions, and these decisions must consist of: "..(A) findings and conclusions, and the reasons or basis therefore, on a l l the material issues of f a c t , law, or dis c r e t i o n presented on the record; and (B) the appropriate r u l e , order, sanction, r e l i e f , or denial thereof. (90) Bias (91) Unlike the Ontario Act, the American Administrative Proced-ure Act has not stopped short of giving rules pertaining to bias on the part of the decision-maker. In section 556, i t i s enacted that every-one who participates i n the decision making s h a l l conduct his work i n (92) "an impartial manner". I f one should deem himself d i s q u a l i f i e d , (93) he may withdraw. I t i s also enacted that a party i s able to f i l e , (9 " i n good f a i t h " , an a f f i d a v i t presenting an o f f i c e r as being biased. In such a case the agency has to determine the matter i n the proceed-(95) mgs and make i t s decision a part of the record. These l a s t two chapters have attempted to present a concise des-c r i p t i o n of the common law and the present s i t u a t i o n i n B r i t i s h Colum-b i a with regard to administrative procedure. Two codes already i n use which t r y to solve the problem of procedural safeguards have been d i s -cussed i n d e t a i l . With t h i s background, these questions a r i s e : Which i s the best way to deal with administrative procedure? Which solution gives the i n d i v i d u a l most protection and which hampers the e f f i c i e n c y of the t r i b u n a l the least? These are just some of the questions which w i l l be dealt with i n the following chapter. - 68 -CHAPTER I I I SHOULD BRITISH COLUMBIA ENACT A MINIMUM ADMINISTRATIVE PROCEDURE ACT? This chapter discusses some of the things done and said about administrative procedure i n different common law j u r i s d i c t i o n s . C r i -t i c i s m of the common law approach and of the statutory procedure enact-ments w i l l be discussed and analyzed. Included i n t h i s chapter i s also a proposal f o r a minimum admin-i s t r a t i v e procedure act. I t w i l l attempt to solve the question of a p p l i c a b i l i t y of the act and the problem of which safeguards are neces-sary • i n such an act. - 69 -REFORM OR STATUS QUO As has been discussed i n Chapter I , the procedure of tribunals i n B r i t i s h Columbia i s regulated by a mixture of the rules of natural ju s -t i c e and by provisions i n the tr i b u n a l s ' establishing statutes. This system has been investigated and c r i t i c i s e d by the Law Reform Commis-sion of B r i t i s h Columbia and there has been at least one proposal f o r an administrative procedure act f o r B. C. In 1973, Mr. Wallace, a private member of the Legislative Assembly, proposed the enactment (2) of the Guarantee of Natural Justice Act, but t h i s d i d not pass. The Law Reform Commission's Report on Administrative Procedure did (3) not suggest the enactment of minimum r u l e s , although i t appears that those who carri e d out the research involved i n the report, d i d recommend such an enactment. This proposal did not receive approval (14) from the Commission i t s e l f . The Law Reform Commission was not sa-t i s f i e d with the present s i t u a t i o n , but f e l t there was a flaw i n the (6) approach of statutes regulating procedural fairness. This flaw consists of the p o s s i b i l i t y of l i m i t i n g the f l e x i b i l i t y of the adminis-t r a t i v e tribunals by placing unnecessary constraints on some of t h e i r functions. A code of natural j u s t i c e might s u i t some proceedings, but not a l l , f o r example the procedure of a t r i b u n a l i n an emergency s i t u a -(7) . . . . t i o n . Instead, the Commission recommended an inquiry body to iden-t i f y the t r i b u n a l s ' functions and to consider these functions and t h e i r (8) purposes with regard to the question of procedural fairness. Thus, while the common law stand has been severely c r i t i c i s e d as being a poor solution to procedural fairness i n the administrative pro-cess, the approach taken i n Ontario and i n the United States has also - 70 -been c r i t i c i s e d as defective. The Arguments The major argument f o r the common law rules of natural j u s t i c e i s r e a l l y negative. I f s t r i c t procedural r u l e s were enacted, the f l e x i -(9) b i l i t y and e f f i c i e n c y of the tribunals might disappear. The pur-, pose behind l e t t i n g the tribunals take over t r a d i t i o n a l court problems was to f a c i l i t a t e a speedy, f l e x i b l e and inexpensive solution to the growing number of government interventions. The Law Reform Commission also questions the fairness of asking the community to bear the added costs, i n terms of time, money and s t a f f , should administrative t r i b u -nals have to. conform to an administrative procedure act. . The d i v i s i o n between the two approaches l i e s in.the arguments f o r e f f i c i e n c y and the arguments f o r the protection of the i n d i v i d u a l . One administrative scholar, John W i l l i s , writes: "Under the present common law rules of 'natural j u s t i c e ' , uncertain as they are i n t h e i r application and i n t h e i r content, we have inherited from a series of English cases an approach to administrative pro-cedure so relaxed that a l l a deciding authority r e a l l y has to do i s to give the c i t i z e n i'.a f a i r shake'. I f you set up mandatory statutory codes of minimum procedural decencies, however devised, you w i l l , i n my view, inevitably r e i n t r o -duce into 'non-court' deciding authori-t i e s the 'court'atmosphere that they were created to avoid - where following the prescribed r i t u a l i s more important than getting at the merits, and strings of procedural objections are regularly made for no other purpose than to give the lawyer who loses, on the merits of a second s t r i n g to hi s bow i n the court of review." (11) - 71 -However, to argue Professor W i l l i s ' point, i t can also be said that without the guidelines of a minimum procedure code, lawyers can misuse the inconsistency and uncertainty of the rules of natural j u s t i c e to obstruct and delay the administrative actions by challenging the pro-ceedings with every conceivable r u l e of natural j u s t i c e . There may also be higher values than administrative e f f i c i e n c y , f o r example, the protection of individuals from what can be considered as un f a i r govern-mental actions. This leads to the argument against the present s i t u a t i o n i n B r i t i s h Columbia. The major problem with the common law i s the incon-sistent and uncertain manner i n which the courts handle the c l a s s i f i c a -t i o n of functions into j u d i c i a l , q u a s i - j u d i c i a l or administrative, a c l a s s i f i c a t i o n that i s e n t i r e l y dependent on the on the facts and c i r -cumstances surrounding each separate case. The Law Reform Commission of B r i t i s h Columbia, i n t h e i r conclusions on t h i s issue, said: "Conceptual rationales i n judgments are often quite meaningless, and may amount to no more than post hoc l a b e l l i n g . Either decisions based on e x p l i c i t facts and contextual considerations are being obscured by confusing and inconsistant conceptual r a t i o n a l i z a t i o n s , or r e a l i -ties are being ignored i n favour of dubious conceptual analysis. The r e s u l t -ing confusion has rendered the common law quite unable to ensure systematic procedural safeguards f o r individuals affected by agency action." (12) (13) The McRuer Commission summarized i t s c r i t i c i s m by saying that before a court has decided how to c l a s s i f y a tribunal's functions i n any p a r t i c u l a r case, i t can not be said with certainty whether the (14) t r i b u n a l need conform to the rules of natural j u s t i c e or not. This gives r i s e to two d i f f i c u l t i e s : 1) the t r i b u n a l does not know whether - 72 -the rules of natural j u s t i c e are applicable, and 2) the affected (15) parties do not know the procedural safeguards available to them. McRuer also found that the common law i s inadequate because, although the tribunal, might know that i t must follow a f a i r procedure, the sub-(16 ) stance of the procedure i s uncertain. ' The McRuer report concludes: "These c r i t i c i s m s emphasize that the development of procedural requirements of l i m i t a t i o n s applicable to tribunals with a wide variety of powers and a wide v a r i a t i o n i n t h e i r c o n s t i t u t i o n , cannot be s a t i s f a c t o r i l y l e f t to the courts. In any case i t i s quite u n r e a l i s t i c to expect laymen to be presumed to know when and under what circumstances and to what extent the rules of natural j u s t i c e apply to the statutory powers they exercise. I t i s also u n r e a l i s t i c to expect the courts, to evolve suitable rules, f o r i n d i v i d u a l t r i b u n a l s . I t i s therefore essential that means be found to develop rules appropriate to the varying purposes and cha r a c t e r i s t i c s to which they are respectively applicable." (17) (18) In New Zealand, two reports argued that a minimum procedure act had virtues i n protecting the i n d i v i d u a l and helping to clear up some of the uncertainty and unpredictability l e f t by the common law. However, when Mr. K.J. Keith did the f i n a l investigation on "A Code of Procedure for • • (19) Administrative Tribunals", the conclusion was the same as that of the Law Reform Commission i n B r i t i s h Columbia. That i s that a minimum procedure act might hamper the e f f i c i e n c y of the t r i b u n a l s , and that as the administrative tribunals are so diverse, i t i s impossible to lay down procedural rules which could be applicable to a l l , without consi-deration of the p a r t i c u l a r functions of the t r i b u n a l concerned, or of the circumstances and facts surrounding the case. - 73 -The McRuer Commission also dealt with the problem of competing interest between e f f i c i e n c y and in d i v i d u a l r i g h t s . While conceding that detailed procedural rules cannot be enacted without impeding the e f f i -c i e n c y , ^ * ^ "the Commission nonetheless thought that "generally recog-nized fundamental procedural requirements" could w e l l be enacted, being applicable to the "exercise of any statutory power where a f a i r proced-(21) ure i s required." These fundamental minimum procedural safeguards should then be followed by more detailed rules applicable to the s p e c i f i c + i (22) tri b u n a l . According to the McRuer Report, the v i r t u e of ndnimal procedural protections i s that the draftsmen would be controlled and administrators and courts guided. In t h i s way, the uncertainty i n the common law would (23) be c l a r i f i e d . The McRuer Report also states that through one such procedural act, every c i t i z e n w i l l have expressed to him i n clear terms (24) the safeguards to which he i s e n t i t l e d i n the administrative process. The main arguments f o r a minimum administrative procedure act are: a) the public w i l l have a greater understanding of which procedural safeguards are available to them, b) administrators w i l l know, with (25) greater certainty, with which procedural requirements they must comply, and c) i t would clear up some of the unnecessary inconsistencies of procedure between dif f e r e n t tribunals. By way of summary, one might say that the majority of law reform reports, and the l i t e r a t u r e , are unanimous about the uncertainty, i n -consistency, and unpredictability of the common law rules of natural j u s t i c e when applied to tribunals' procedural problems. A l l are i n agreement that something must be done, as long as i t does not involve a (26) detailed administrative procedure act applicable to a l l tribunals. - 74 -This i s where the consensus ends, as there i s , as yet, no general agree-ment as to how the problem should be solved. The most commonly suggested (27) solutions are; to establish a "rules committee"., to review a l l ex-i s t i n g tribunals with the possible enactment of detailed procedure i n (28) each establishing statute, or to enact a niinimum administrative procedure act together with an enactment i n the enabling statutes or regulations of more detailed rules applicable to the t r i b u n a l i n ques-t i o n , or even a combination of a l l the above. Because of the many diff e r e n t proposals, i t seems impossible to say that one solution i s " r i g h t " while the other i s "wrong". The best solu-t i o n i s a matter of personal taste. Which solution gives the i n d i v i d u a l the most protection? Which solution hampers administrative e f f i c i e n c y the least? Personally, I f e e l that the present s i t u a t i o n i n B r i t i s h Columbia i s unsatisfactory. This i s mainly due to the unpredictability of the common law, and the inconsistency of fundamental procedural safeguards enacted by the Legislature i n the tribunals' establishing statutes. A minimum procedure act may not solve a l l the problems, but i t would pro-vide a st a r t f o r a more systematic study of the functions of the d i f f e r -ent tribunals and t h e i r procedure. The educational aspect, both f o r the adniinistrators and the public, i n my view cannot be over emphasized. The public may not be better protected i n f a c t , but i t w i l l have a f e e l -ing of " f a i r play" i f fundamental, e a s i l y understood procedural rules are enacted and made available and the administrator given guidelines to follow. The question remains: Which rules can be applied to a l l tribunals without hampering t h e i r efficiency? - 75 -SOME SUGGESTIONS FOR A MINIMUM ADMINISTRATIVE PROCEDURE ACT FOR BRITISH COLUMBIA No two administrative tribunals deal with i d e n t i c a l problems. When carrying out t h e i r duties, the tribunals must a l l consider d i f f e r -ent facts r e l a t i n g to dif f e r e n t problems before a r r i v i n g at a decision. This appears to be the reason why i t i s a truism, throughout the j u r i s -dictions of the common law, that a detailed procedural code should not be enacted. I t i s also true, however, that j u s t i c e not only should be done, but should also be seen to be done. Therefore, some fundamental procedural rules have been regarded as a method by which to guide ad-ministrators as w e l l as to increase the public's confidence i n the ad-ministrative process. The bulk of the l i t e r a t u r e dealing with administrative procedure i s based on a description of the common law and i t s c r i t i c i s m , but very l i t t l e has been said about what a f a i r procedure should e n t a i l , and thus, what would be appropriate to enact i n a minimum procedure act. Primar-i l y , of course, there i s the question of the a p p l i c a b i l i t y of such an act. A p p l i c a b i l i t y of a Minimum Administrative Procedure Act I t i s important f i r s t to establish which administrative functions should be regulated by an administrative procedure act. A d i s t i n c t i o n i s often made between adjudicative, investigative and ru l e making func-(31) tions. Adjudication i s said to be a process i n which the t r i b u n a l determines the r i g h t s and duties of s p e c i f i c persons with the r e s u l t of (32) a binding enforceable order. Investigative proceedings are those - 76 -used to c o l l e c t information before making a report, which, might l a t e r (33) be used by the t r i b u n a l when making i t s f i n a l decision. The r e -port i t s e l f i s not binding or enforceable. Rule making, generally (34) speaking, i s the process of regulation-making by the trib u n a l s . The term also encompasses the making of informal procedural r u l e s , (35) guidelines, and po l i c y standards. ( 36) As has already been discussed, the Statutory Powers Procedure (37) . . Act m Ontario completely exempts investigation and rule making from i t s scope. This appears to be a wise solution as neither invest-igation nor r u l e making have been studied i n d e t a i l and i t i s possible to presume that any procedural rules applicable to them would unneces-(38) s a r i l y hamper the tribunal's functions. I t seems to be protection enough that the f i n a l proceedings, which may wel l have been i n i t i a t e d by an investigation or regulation made by the t r i b u n a l , must be reached i n accordance with procedural safeguards. For example, i f a tribunal's investigation also must conform to the same procedural r u l e s , i t would probably be best to separate the functions within the t r i b u n a l as has (39) been done i n the United States with the semi-independent hearing o f f i c e r s . This approach i s one which has been severely c r i t i c i z e d , however, and i n a Senate-Committee report i t was said: " I t has achieved some uniformity of pro-cedure, some assurance of the applica-tion of f a i r e r standards, but with i t s emphasis on " j u d i c i a l i z a t i o n " has made fo r delay i n the handling of many matters before these agencies." (41) The American " j u d i c i a l i z a t i o n " seems to have gone too f a r i n regu-l a t i n g ' the administrative process. Professor Davis writes: "My opinion i s and has long been that t r i a l - t y p e hearings are a clumsy way - 77 -to determine how many banks and which banks ought to serve a community. Some of the worst processes of the federal government are those of the Federal Communications Commission and the C i v i l Aeronautics Board, whose proceedings i n comparative application cases often cost i n d i v i d u a l parties several hundred thousand dollars and yet seem to have l i t t l e u t i l i t y . I think hearings i n the banking cases should be held i f , but only i f , the.prospects are that i n par-t i c u l a r circumstances such hearings w i l l be the most e f f i c i e n t way to do what needs to be done; c l e a r l y t r i a l s are the best way to resolve disputes about s p e c i f i c f a c t s . " (42) This " j . u d i c i a l i z a t i o n " has also generated non-compliance by agencies covered by the j u r i s d i c t i o n of the A.P.A. , f o r example: "The Parole Board's refusal to give reasons for a denial of parole i s a clear-cut v i o l a t i o n of the Administra-tiveProcedure Act, and the v i o l a t i o n has continued from the time that act was made law i n 1946.'V (43) As the American method of separating functions within the agencies has been severely c r i t i c i z e d , and as there i s no s i m i l a r separation i n (44) the Canadian common law, i t i s my opinion that i t has no place i n an administrative procedure act f o r B r i t i s h Columbia. An administrative procedure act fo r B r i t i s h Columbia should encom-pass a l l administrative decision-makers performing an adjudicative func-t i o n . One of the main purposes of a code of natural j u s t i c e i s to avoid the common law di s t i n c t i o n s between j u d i c i a l , q u a s i - j u d i c i a l , and ad-ministrative tribunals. The Ontario Legislature intended to avoid the common law d i s t i n c t i o n by stating that t h e i r procedure act should apply (45) to a l l statutory powers of decision, but t h i s approach has given r i s e to considerable d i f f i c u l t i e s , as the case of Re Robertson et a l . and Niagara South Board of Education. i l l u s t r a t e s . Here, the court s t i l l appears to make a c l a s s i f i c a t i o n of functions. A possible solution to t h i s problem may be to state that a statu-tory power i s a power conferred by statute on an administrative, quasi-• • (47) j u d i c i a l or j u d i c i a l tribunals. This would cover the p o s s i b i l i t y of a court c l a s s i f y i n g a decision-maker as administrative, and thereby avoid the protection of the act, because i t i s . c l e a r l y stated that the act also applies to administrative functions. The proposal that an act should apply to a l l adjudicative t r i b u n -a l s , whether administrative, q u a s i - j u d i c i a l or j u d i c i a l , and not spec-i a l l y consider the p a r t i c u l a r tribunals functions, has been considered as a major flaw i n the code approach by the Law Reform Commission i n B r i t i s h Columbia. ^ 4 8^ This i s due to the fact that i t might put an extra burden on seme administrative functions. The examples used i n the Commission's report are emergency situations where speed i s essen-(49) t i a l . In my opinion, t h i s problem i s over emphasized, as i t i s possible to solve the problems involved i n emergency situations by mak-ing exemptions. As the structuring of the tribunals i s not based upon the s i m i l a r i t y of t h e i r functions, the exemptions would have to include a l l tribunals which may need emergency powers. (In Sweden, administra-.' t±veauthorities with special powers are c l a s s i f i e d as carrying out "police functions" under certain circumstances. In t h i s way they are exempt from the normal procedural r u l e s ) . A good example i s the F i r e Marshal. As he carries out hi s inspections following a r e l a t i v e l y regular scheme, i t would not be necessary to--.exempt a l l proceedings from compliance with the irinimum procedural r u l e s . I f an inspector - 79 -finds that there i s a lack of the necessary f i r e f i g h t i n g equipment, then he should be able to give the owner of the premises an opportunity to rebut the findings and present h i s side of the case, before an order i s issued. In order to achieve the necessary e f f i c i e n c y , time l i m i t s could be stipulated f o r the r e b u t t a l . This practice of f a i r procedure, before an order i s issued, might also reduce the number of appeals the F i r e Marshal needs to deal with. At the same time, guidelines defining an immediate emergency could be stipulated and i n emergency situations the inspector could carry out the necessary steps to protect the community. The procedural safeguards could be made available to the affected party a f t e r the actions have been carried out, i f he should f e e l that the steps taken were u n j u s t i f i e d . The Law Reform Commission's use of the F i r e Marshal to i l l u s t r a t e t h e i r c r i t i c i s m of the code approach with regard to emergency situations, appears to confuse the functions of the F i r e Marshal. The Commission apparently thought that an administrative procedure act should be applic-able to the power of the F i r e Marshal to enter any building f o r inspec-t i o n . However, there i s naturally a d i s t i n c t i o n between the power to enter and the power to make binding orders. The power to enter f o r inspection i s generally regarded as a f a i r interference with private property f o r the benefit of the community. The F i r e Marshal's i n v e s t i -gative function would not be affected by an administrative procedure act, but the act would give the affected party an opportunity to chal-lenge the findings and he would s t i l l have a l l the procedural safeguards necessary as protection from unfair or a r b i t r a r y government actions available to him. A l l l e g a l studies i n t h i s area have been concerned that a minimum - 80 -procedure act would hamper administrative efficiency.due. to the fact that the tribunals deal with such diverse areas of society. In Alberta, the Lieutenant i n Council stipulates which tribunals should be affected, (52) either i n part or t o t a l l y , by the Act. The Ontario Act stipulates that there must be a hearing requirement i n the enabling statute of the (53) t r i b u n a l , before the minimum rules apply. My suggestion f o r B r i t i s h Columbia i s that an act be applied to a l l t r i b u n a l s , but that exemptions can be made by the Legislature, by expressly stating i n the enabling statute of s p e c i f i c t r i b u n a l s , that (5 they are to operate notwithstanding the administrative procedure act. I consider t h i s to be a more pos i t i v e yet more r e a l i s t i c approach to the problem, as procedural protection should be the normal state of a f f a i r s , and exemptions from i t , unusual. In short, i t i s my opinion that a minimum procedure act i n B r i t i s h Columbia should apply to a l l t r i b u n a l s , regardless of whether they are c l a s s i f i e d as administrative, q u a s i - j u d i c i a l or j u d i c i a l , i f the question they have to deal with con-cerns r i g h t s , duties, p r i v i l e g e s , d i s c i p l i n a r y action, or any other s i m i l a r action. Such would be the case, unless the Legislature has ex-p l i c i t l y declared i n the establishing statute that a p a r t i c u l a r t r i b u n a l (55) can operate notwithstanding the act. Fundamental Procedural Safeguards to be Enacted i n an Administrative Procedure Act There are a number of reports and a r t i c l e s suggesting which, basic minimum procedural rules should be enacted i n an administra-tive procedure act. Despite t h i s , there appears to be no c r i t i c a l analy-s i s of each r u l e , nor any discussion as to how much each may i n h i b i t - 81 -administrative e f f i c i e n c y . As stated e a r l i e r , i t has generally been agreed that a c o n f l i c t e x i s t s between e f f i c i e n c y and procedural safe-guards , but no one has evaluated the extent of t h i s c o n f l i c t . U n t i l now, the c r i t i c i s m , of minimum rules has been very general. In order to avoid hampering the e f f i c i e n c y of the administration, the rules are required to be very fundamental, and i n essence, no more than a c o d i f i c a t i o n of the more essential rules of natural j u s t i c e . I t can be argued that, as these rules are so basic, the tribunals probably follow them already, and i f t h i s i s the case, that i t would be better to wait f o r a f u l l investigation of each t r i b u n a l , as has been suggested (59) by the Law Reform Commission of B r i t i s h Columbia. However, i t can also be argued that a minimum procedure act would serve as a method of educating both the administrators and the p u b l i c , as w e l l as help increase the public's confidence i n the fairness of the public adminis-t r a t i o n . The Ontario enactment does not appear to have hampered nor un-necessarily constrained the administration. One may w e l l consider a minimum procedure act as the beginning of more detailed procedural reforms by acting as a ca t a l y s t . One should keep i n mind the Law Reform (61) Commission's suggestion of making i n inquiry into each t r i b u n a l , (62) which may w e l l amount to over eight hundred separate studies, and that since t h i s suggestion was made, four years ago, nothing has been done. My proposals and arguments f o r basic procedural requirements w i l l be l i m i t e d to the rules which have been used as sub-headings throughout the preceeding chapters. ^3) - 82 -Notice The most basic requirement to ensure fairness to those affected by the actions of a t r i b u n a l , i s to give notice. This should be given allowing the affected persons reasonable time, and should include both information about the issue i n question and a reference to the statutory authority under which the proceedings are to be held. ^4) ip^g l i m i t s f o r communication should be stipulated, or the time and place of an (65) eventual hearing stated. In the majority of administrative t r i -bunals the issues are r e p e t i t i v e and so i t would be possible to use a (66) standard form f o r notice. This notice requirement can, i n my opin-ion, apply to the rentalsman without hampering his e f f i c i e n c y as both landlords and tenants should have the r i g h t to know whether a proceed-ing i s i n i t i a t e d which might res u l t i n adjudication. The Labour Relat-ions Board already has to conform to s i m i l a r notice requirements i n both the Code and the Regulations. The F i r e Marshal, as stated e a r l i e r , should not have to n o t i f y an owner or occupant of a building before h i s inspection, but should conform to t h i s basic notice requirement before issuing an order. Right to Particulars As the notice requirement has been extended here to include both the issue i n question and which statutory authority the proceedings are to be held under, the affected party should have a l l the information (69) necessary to prepare his case. Hearing The Ontario Act i s applied to statutory powers of decision when a t r i b u n a l i s required to hold a hearing. I t i s my opinion that such an enactment would unnecessarily i n h i b i t administrative e f f i c i e n c y - 83 -due to the fact that a hearing might not be needed i n a l l proceedings where i t i s necessary to u t i l i z e other procedural safeguards. In Sweden, very few administrative decisions are made following an o r a l hearing. A hearing, i n the Canadian context, can be extremely informal involving no more than a telephone c a l l , as is. the case i n the rentalsman's hear-+ (71) ing requirement. I suggest that an administrative procedure act should have a provis-ion stating that no decision may be rendered before the affected party has been informed of a l l the information provided f o r the case, by persons other than the party himself, and that he may be given the opp-(72) ortunity to rebut the provided information. Such a provision makes i t necessary f o r the deciding t r i b u n a l to decide, at i t s own d i s c r e t i o n , i f a formal hearing i s necessary, or i f the case can be decided on the papers. A minimum procedure act can be only a guideline f o r administrative decision-makers due to the diverse areas dealt with by each. The enact-ment which I have j u s t described i s s i m i l a r t o one used i n Sweden. There they have established some exemptions to the communication require-ment which seem to n u l l i f y i t i f any unscrupulous adnrinistrators should use t h e i r d i s c r e t i o n . For example, the f i r s t exemption from the com-munication requirement i s i f the communication i s "obviously unnecessary". I f the administrator's d i s c r e t i o n i s l e f t unfettered , the general communication requirement might we l l be rendered worthless. One must keep i n mind, however, the di f f e r e n t l e g i s l a t i v e processes i n Sweden and Canada. The rules i n Sweden are very general, but are exemplified i n the extensive "preliminary work" carried out before any enactments are made. This "preliminary work" l i m i t s the interpreter's d i s c r e t i o n - 84 -as i t i s used not only as a guideline f o r the administrators, but also as an instrument f o r the interpretation of the statutes by the Swedish courts. Thus, i t nearly has the same status as the law i t s e l f . In the "preliminary work", the Swedish Parliament has made i t clear that the exemption from the communication requirement, on "obvious unnecessary" grounds, applies only to application cases where the applicant i s suc-(73) cessful and where no one else's r i g h t s or p r i v i l e g e s are affected. . . (74) A second exemption i s when a decision cannot be postponed. This covers any emergency situations and excludes the communication r e -quirement situations demanding speed. For example, an inspector's de-• • • (75) c i s i o n under the F i r e Marshal Act, when an order must be made and (76) carried out immediately f o r the protection of the community. There must be exemptions i n the provision of communication, but i t s success, i f one were to follow the Swedish model, depends upon whether the rules are interpreted i n good f a i t h . A possible solution might be the formulation of po l i c y guidelines by each t r i b u n a l concern-ing when the exemptions should be used. A guideline might also be enacted stating that a f t e r the rebuttal of a r e b u t t a l , the communica-t i o n be ended. Disclosure of Information In order to have a f a i r chance to make a case, i t i s important that one have f u l l access to a l l the material used as a basis f o r the decision. An open society should be able to provide the parties i n v o l -ved with the information received or collected by t h e i r t r i b u n a l s . A general r u l e should therefore be formulated assuring a party of his r i g h t to a l l material that w i l l be used by the decision-maker when - 85 -a r r i v i n g at h i s decision. In t h i s way, the party involved can properly rebut the information and make hi s case. This r u l e naturally needs ex-emptions, but i n most a<±rinistrative proceedings i t appears possible to l e t the party have the information. Justice can hardly seem to be done i f the grounds f o r a decision i s secret and not available f o r prep-aration of the rebuttal by the affected party. (77) The Ontario Act ' apparently stops short of assuring t h i s basic requirement except when the proceedings involve the good character of a party. I f t h i s i s the case, the Ontario Act states only that "reason-(78) able information" be given. I f one makes i t a general p r i n c i p l e that a l l information be made available to the party concerned, there are two obvious exemptions which are needed. These are; information which i s important f o r state security, and information which may harm or prejudice the source, i f given to the involved party. This second exemption should not exclude disclosure completely. The t r i b u n a l could inform the affected party of the material without d i s c l o s i n g i t s source of information. This should not exclude the Labour Relations Board from informing the persons con-cerned of the findings i n the I n d u s t r i a l Officer's report but the sources need not be disclosed. This could also apply to proceedings by the rentalsman, where complaints of disturbance should be made clear (79) to the "accused", but the sources excluded. Adjournment Considering the special facts and circumstances which may give cause f o r an adjournment, i t i s d i f f i c u l t to formulate a general r u l e as to when adjournment should be given. This decision must be l e f t to - 86 -the di s c r e t i o n of the administrators. In order to protect the e f f i c -iency of the t r i b u n a l s , i t must be the exception rather than the r u l e to adjourn t h e i r proceedings. When material i s circulated f o r r e b u t t a l , there might instead be s t r i c t time l i m i t s . In t h i s way the speed, necessary i n administrative proceedings, can be achieved. A p p l i c a b i l i t y of the Rules of Evidence Rules of admissability of evidence might be a good procedural protection i n the courts but they do not seem to have a place i n an (81) Administrative Procedure Act. Counsel The r i g h t to counsel should be guaranteed i n a minimum procedure act. There i s a great consensus amongst those who have written on t h i s (82) subject that the affected party should have a r i g h t to counsel, the reason being the protection of "the i l l i t e r a t e or i n a r t i c u l a t e (83) person". The McRuer Report does not accept the argument that r i g h t to counsel creates an unnecessary additional expense and undue formality. However, there does seem to be a problem with an un-lim i t e d r i g h t to counsel which has arisen due to the free l e g a l a i d service available to the public; the rentalsman often t r i e s to solve landlord-tenant problems on the papers, but he also often uses an informal hearing, where the o f f i c e r can meet with the parties. The former rentalsman, Mr. B. Clarke, expressed some concern over the fact that often tenants get a lawyer from Legal Aid to a s s i s t them at the informal hearing. This l e g a l assistance i s , of course, free. The - 87 -landlord, expecting an "informal hearing", finds h i s 'opponent' has l e g a l counsel and invariably asks that the meeting be adjourned. He then hires h i s own l e g a l representative f o r the next hearing. This series of events makes the rentalsmans job of mediation more, d i f f i c u l t , and hampers the e f f i c i e n c y of his o f f i c e due to delays and increases i n the costs. Cross-Examination of Witnesses ( 86) Following the suggestion made i n the McRuer Report, the Sta-tutory Powers Procedure Act ^ 8 7^ includes a provision ^ 8 8^ allowing a party to conduct the cross-examination of witnesses to obtain a f u l l and f a i r disclosure of the f a c t s . ^ 8 9^ This i s one of the few proced-u r a l safeguards which has been d i r e c t l y c r i t i c i s e d as being impractical. [T]he r i g h t to cross-examination. Must an Ontario regulatory authority taking d i s -c i p l i n a r y proceedings against one of i t s licensees r e f r a i n from acting on.the state-ment of a complaint i n B r i t i s h Columbia or on the report of a responsible o f f i c i a l i n i t s opposite number i n B r i t i s h Columbia unless i t can persuade them to come i n person to Toronto?" (90) As previously suggested, perhaps communication can often replace the administrative hearing, i n which case, the question of cross-examina-t i o n would not a r i s e . One might also argue that an absolute r i g h t to cross-examination allows administrative proceedings to become too much l i k e formal court room procedure, the avoidance of which was one of the (91) major reasons of transfer from the courts to the tri b u n a l s . Hearing by Person Who Decides I t should be taken f o r granted that, before making a f a i r decision, the decision-maker must be informed of a l l the relevant material i n a case. I t might, however, be possible to enact a rule stating that persons o f f i c i a t i n g at a hearing can not be joined by others who were (92) not present when evidence was given. Reason f o r Decision That the tribunal's decision should be made i n w r i t i n g , and each party n o t i f i e d i s obvious, as i t i s necessary to inform the concerned persons of t h e i r l e g a l position. However, should the communicated written decision also include the findings and reasons f o r the decision? (93) The Alberta enactment " states that when the exercised power adverse-l y affects the rig h t s of a party, he should be given not only the de-ci s i o n i n w r i t i n g , but also a statement of the findings of facts upon . . (94) which the decision has been based, and the reasons f o r the decision. (95 This extensive .information duty has also been suggested i n New Zealand. The Ontario Legislature, on the other hand, decided not to impose what they f e l t to be too heavy a burden on the administration. The Statu- tory Powers Procedure Act makes a compromise; reasons are to be (97) given m w r i t i n g i f they are requested by a party. The general, p r i n c i p l e of the Swedish Act i n t h i s matter i s that the decision should e n t a i l the reasons for the decision. This p r i n c i p l e i s followed by exemptions which allow the tribunals the pos-(99) s i b i l i t y to omit the reasons. The major exemption i s i f the party was successful, the t r i b u n a l need not furnish him with t h e i r reasons. The party may s t i l l request that reasons be given however. In B r i t i s h Columbia, I would suggest that the reasons accompany the written decision. Some exemptions are necessary - f o r example, - 89 -when the decision does not adversely affect a party's r i g h t , or, i f state security i s at stake. This requirement does not have to hamper the e f f i c i e n c y of either the rentalsman or the Fir e Marshal. The l a t t e r already has to give reasons when deciding appeals from the Inspector's decisions, t,irt one would think that the Inspector's i n i t i a l decision would also have to state the reasons. The Labour Relations Board does not have to give reasons, '^-'D ^ g ^ ^ ^ £,e required to do so when using formal adj udication. The reasons should include the decision-makers findings of facts and of law. Providing the party with both the findings and the reasons for the decision helps him to understand the decision better and allows him to evaluate h i s chances for a successful appeal. At the same time, making the administrators write down t h e i r reasons f o r decision en-sures a more thorough analysis of the case and may r e s u l t i n f a i r e r judgment. Bias The McRuer Report stopped short of codifying the common law rules regarding bias. I t seems necessary, however, to make some guide-li n e s defining when an administrator i s biased. "A glance at the judgments of the recent past disclosures that the incidence of proceedings a l l e g i n g bias i n tribunals i s constant and increasing. One reason for this, i s the pe r s i s t i n g uncertainty about the relationship between the t r i -bunals and interested persons or t h e i r representatives. Another i s the fact that many tribunals comprise of business competitors, of the 'accused' - a l l domestic tribunals regulating professions - 90 -do f o r instance and t h i s leads, at times, to dark apprehensions of bias. There are no doubt other reasons. U n t i l the relationship of tribunals to t h e i r own personnel and the outside world be-come better defined and u n t i l t h e i r pro-ceedings become more regular and uniform, allegations of bias are not l i k e l y to decrease." (103) The Swedish bias r u l e , which i s applicable to a l l administra-t i v e a u t h o r i t i e s , might be used to provide guidelines applicable even i n a Canadian context. This rule, provides that administrators involved i n an administrative case are biased i f , i n t e r a l i a ; (.1) the matter concerns himself, or i f the decision of the case can be presumed to re s u l t i n favour or prejudice to him or anyone close to him; (2) he has handled the matter i n another instance; (3) he has previously represented anyone who i s a party i n the matter; and f i n a l l y , the blanket clause, (4) a p a r t i c u l a r circumstance i s at hand l i k e l y to cause appre-hension of i m p a r t i a l i t y i n the matter. The section continues by adding that i m p a r t i a l i t y can be overlooked i f i t i s obviously irrelevant. Such an enactment does not solve a l l the problems of determining bias but i t at least gives some guidelines. In order to protect the tribunals from abusive use of t h i s section, an appeal of the tribunal's decision due to a question of bias can only be done once the f i n a l decis-ion has been rendered on the merits of the matter. These Swedish bias rules are not nearly as r i g i d as those applic-able to judges and a l l administrative court judges i n Sweden., ^ ^^^ The suggested guidelines f o r determining bias do not cause any problems f o r the rentalsman or F i r e Marshal though they may prove d i f f i -c u l t f o r the Labour Relations Board with i t s t r i p a r t i t e composition. - 91 -When one considers such cases as Regina v. Ontario Labour Relations  Board; Ex parte H a l l ^ 1 0 7^ and Regina v. B r i t i s h Columbia Labour  Relations Board, ( 1 0 8^ (which were discussed i n Chapter I ) , i t seems as i f the above guidelines would cover these situations. CONCLUSION Throughout my studies f o r t h i s thesis I have become more and more aware of the fact that administrative law has been extensively researched, but without any consideration to i t s relationship to and i t s e ffect on the administrative process. Administrative tribunals have been enacted by the Legislature when i t was f e l t necessary to do so, but very l i t t l e thought seems to have been taken when establishing the procedural rules and guidelines.. The public sector as a whole, i s very unstructured, and without e a s i l y available information about what powers the dif f e r e n t tribunals, have, i t i s d i f f i c u l t to say f o r certain whether a minimum procedural act has much of a purpose to f i l l . On the other hand, i t would be unsatisfactory i f the future devel-opment of administrative procedure was l e f t e n t i r e l y up to the courts. Both the administrators and., the public need further information and more guidelines i n the administrative j u s t i c e system. This should be the r e s p o n s i b i l i t y of the Legislature. A minimum procedure act may be a good star t i n achieving a structured, conformed, and predictable admin-i s t r a t i v e system. A minimum procedure act i s only a method of establishing guide-l i n e s and should, therefore, be enacted mainly f o r an educational pur-pose f o r the benefit of the administrators and the public. I t would be a t h i n varnish over a very unstructured system, however, as the reform of the administrative j u s t i c e system has to go deeper. This being the case, I am i n f u l l agreement with the Law Reform Commission of B r i t i s h Columbia that an inquiry i s needed into each and every administrative t r i b u n a l . Such an inquiry should involve not only a look at procedural - 93 -questions, but also an investigation to t r y to f i n d a method of struc-turing the tribunals a f t e r t h e i r function. I t may also be possible, through the inquiry, to reduce the number of tribunals by combining those working i n the same general areas. - 94 -FOOTNOTES: INTRODUCTION 1. I have chosen these eleven rules because I f e l t that they were the most common rules generally connected with a f a i r administrative process. For reference see, f o r example, the headings used i n : Royal Commission Inquiry Into C i v i l Rights, Report I , Vol . 1 (1968), pp. 213-218; Law Reform Comnission of B r i t i s h Columbia, Report on C i v i l Rights, Part 3 - Procedure Before Statutory Agencies (LRC 17 1974), pp. 23-29; Reid, Robert F.; Administrative Law and Practice (Toronto: Butter-worths 1971) pp. 209-223; Laux, Frederick A.; The Administrative Process (Faculty of Law, University of Alberta, 3d re p r i n t 1977) pp. 427-528. 2. See sp e c i a l l y Reid, supra, note 1, pp. 53-67. 3. The Statutory Powers Procedure Act, S.O. 1971, c. 47. 4. The Administrative Procedure Act, 5 U.S.C. 551-559. - 95 -FOOTNOTES: CHAPTER I PROCEDURAL SAFEGUARDS IN THE ADMINISTRATIVE PROCESS IN BRITISH COLUMBIA 1. The word t r i b u n a l w i l l be used to cover a l l administrative bodies in. the same manner as was adopted by the McRuer report. I n f r a , note 5, p. 28. 2. Wade, H.W.R.; Administrative Law (Clarendon Press: Oxford 3d 1971) p. 172. 3. I b i d , p. 173. 4. For example, see; The Board of Health f o r the Township of S a l t f l e e t v. Khapman [1956] S.C.R. 877. 5. Royal Commission Inquiry i n t o C i v i l Rights,report 1, v o l . 1 (Frank Hogg 1968) p. 145. Hereafter referred to as the McRuer Report. 6. McRuer Report, i b i d , p. 136. 7. Wade, Supra, note 2, chapter 3, pp. 46-102. 8. Wade, Supra, note 2, p. 50. 9. Law Reform Commission of B r i t i s h Columbia, Report on C i v i l Rights Part 3 - Procedure Before Statutory Agencies (LRC 17 1974) p. 19. 10. I b i d , see also McRuer Report, Supra, note 5, pp. 138. 11. Ibid. 12. McRuer Report, Supra, note 5, p. 139. 13. Supra, note 9., p. 12. 14. McRuer Report, Supra, note 5, p. 139. 15. Ib i d . 16. I b i d , p. 138, see also Supra, note 9, p. 13. 17. Supra, note 9,• . p. 13. 18. Reid, Robert F.; Administrative Law and Practice (Toronto: Butter-worths 1971) p. 212. 19. I b i d , p. 121 - The four approaches are; a) the nature of the process; b) the nature of the power; c) the nature of the r e s u l t ; and d) the duty to act j u d i c i a l l y . 20. I b i d , p. 124. - 96 -21. This part i s b u i l t mainly upon the structuring of the Law Reform Committee's report on procedure, Supra, note 9, pp. 13-17. 22. R. v. The E l e c t r i c i t y Commissioners [1924] 1 KB 171 (H.L.) This case i s followed by Nakkuda A l l v. Jayaratne [1951] A.C. 66 (P.C.) and in.Canada by Calgary Power v. Copithorne-'-[1959] S.C.R. 24, where the super-added duty to act j u d i c i a l l y was used as the t e s t . 23. Supra, note 9, p. 14. 24. Supra, note 22. 25. Reid, supra, note 18, p. 149. 26. Supra, note 22. 27. Reid, supra, note 18. 28. Howarth v. Prince George (1958), 14 D.L.R. (2d) 752. 29. R. v. B i r d , ex parte Ross, (1963), 38 D.L.R. (2d) 354. 30. See Law Reform Committee Report, Supra, note 9,. p. 17; McRuer Report,-Supra, note 5, pp. 146-147; and Reid, Supra, note 18, pp. 128-130.. 31. This trend i s held to have started i n In re H.K. (an infant) [1967] 2 Q.B. 617 (D.C.). See Mullan, D.J.; Fairness: The New Natural  Justice (1975), 25 University of Toronto Law Journal 281, pp. 283-288. 32. R. v. Gaming Board of Great B r i t a i n , Ex parte Benaim and Khaida D-970] 2 Q.B. 417 (C.A.). On the other hand, i t does not appear certain whether fairness has any procedural content. See Mullan, Supra, note 31, pp. 296-298. 33. Mullan, Supra, note 31, pp. 296-298. The author has found, however, some indications of attempts to adopt the fairness approach, i . e . Ex parte Beauchamp [1970] 3 O.R. 607 (Ont. H.C.) and two other cases. The approach, however, has not been adopted as r a t i o i n any case. In two parole cases, the Supreme Court of Canada has upheld the dich-otomy between the adm i n i s t r a t i v e - j u d i c i a l functions; Howarth v. National Parole Board (1974), 50 D.L.R. (3d) 349 (S.C.C.) and Mi t c h e l l v. The Queen (1976), 61 D.L.R. (3d) 77 KS.C.C). The d i s s -enting judges, on the other hand, seem to adopt the fairness approach. In an unpublished a r t i c l e by David J . Mullan, Martineau and Butters v. Matsqui I n s t i t u t i o n Inmate Di s c i p l i n a r y Board: I t s Potential Impact  on the J u r i s d i c t i o n of the T r i a l Division of the Federal Court, he says that i n both the Howarth and M i t c h e l l cases (plus two others), the Supreme Court has an opportunity to remark upon the fairness approach, but that the Court avoided these opportunities, apart from making "some statements of a most cryptic kind". (quoted from the conclusion of said a r t i c l e ) . 34. Hlookoff v. City of Vancouver (1968), 67 D.L.R. (2d) 199 (B.C.S.C.) See also Mullan, Supra, note 31, p. 292. - 97 -35. McRuer Report, supra, note 5, p. 138. 36. I b i d . 37. Klymchuk v. Cowan (1964), 45 D.L.R. (2d) 587. 38. I b i d , pp. 598-599. 39. I b i d , p. 600. 40. Supra, note 9, p. 23. 41. Supra, note 37, and Supra p. 10. 42. For example, see where particulars were not s u f f i c i e n t , Re Wilson  and Law Society of B r i t i s h Columbia (1974), 47 D.L.R. (3d) 760 (B.-C.S.C.). (NB the case was not decided on these grounds). On the other hand, where notice was held s u f f i c i e n t without p a r t i c u l a r s , due to the fact that the person concerned had knowledge and exper-ience, and thus should have r e a l i z e d what he was up against, i s found i n : Regina v. Ontario Racing Commission, Ex parte Taylor, Infra, note 46. 43. Board of Education v. Rice [1911] A.C. 179, p. 182. 44. Ibid. 45. Reid, Supra, note 18, p. 57. See also , Law Reform Commissions Report, Supra, note 9, p. 24, where the content of a hearing require-ment i s summed up: "Thus, the general notice of the hearing depends on the type of agency, and whether i n a l l the circumstances a f a i r and adequate opportunity i s accorded affected i n -dividuals to present t h e i r case." 46. For example, Supra, note 4, and Regina v. Ontario Racing Commission  Ex parte Taylor (1971), 1 O.R. 400 (Ont. C.A.). 47. Supra, note 9, p. 26. 48. Re Robinson, L i t t l e S Co. Ltd., [1976] 1 W.W.R. 171. See also Lazarov v. Secretary of State of Canada (1974) 39 D.L.R. 738 (Fed. C.A.), where i t was stated, regarding confidential material: "That i s not to say that a conf i d e n t i a l report or i t s i contents/; need to be disclosed to him but the pertinent allegations which i f undenied or unresolved would lead to r e j e c t i o n of his application must, as I see i t , be made known to him to an extent s u f f i c i e n t to enable him to respond to them and he must have a f a i r opportunity to dispute or explain them." 49. See Reid, Supra, note 18, p. 214 f o r cases. - 98 -50. Re Piggot Construction Ltd. v. United Brotherhood of Carpenters 8  Joiners of America (1974), 39 D.L.R. (3d) 311 CSask. C.A.). The grounds for the decision appears to be that the adjournment was sought at the hearing when the party had known f o r a long time that he would be unable to attend. 51. McRuer Report, Supra, note 5,,' p. 138. See also, Board of Education v. Rice, Supra, note 43, where the Board could "obtain information i n any way they think best." 52. Pett v. Greyhound Racing Association Ltd. [1968] 2 A l l E.R. 545 (C. A.) where Lord Denning seems to hold that i f a man's reputation or li v e l i h o o d i s at stake, he should have, the r i g h t to counsel, (at p. 549). 53. Reid, Supra, note 18, p. 215. 54. Toronto Newspaper Guild v. Globe P r i n t i n g [1953] 2 S.C.R. 18. See also, St. John v. Fraser [1935] 3 D.L.R. 465 where the Supreme Court held that no r i g h t t o cross-examination was to ex i s t under the c i r -cumstances . 55. The King v. Huntingdon Confirming Authority, [1929] 1 K.B. 598. See also Mehr v."Law Society of Upper Canada, [1955] S.C.R. 344, and Re  Ramur, [1957] 7 D.L.R. (2d) 378 (Qnt. C.A.). 56. I b i d , p. 714. 57. McRuer Report, Supra, note 5, p. 138. 58. See Reid, Supra, note 18, pp. 253-254, and the cases c i t e d there. I f no reasons are given, the courts can presume that no good reasons are behind the decision. This was apparently the case i n Padfield v. Minister of Agriculture Fisheries and Food, [1968] 2 W.L.R. 924. In t h i s case, the Minister refused to re f e r a complaint from the farmers about a denial of an increase i n prices by the l o c a l Milk Marketing Board t o a sp e c i a l investigative committee. Lord Denning, M.R., said the following about the Minister's reasons: "Good administration requires that complaint should be i n -vestigated and that grievances should be remedies. When Parliament has set up machinery for that very purpose, i t i s not for the Minister to brush i t on one side. He should not refuse to have complaint investigated without good reason. But i t i s said that the Minister i s not bound to give any reason at a l l . And that, i f he gives no reason, h i s r e -f u s a l cannot be questioned. So why does i t matter i f he gives bad reasons? I do not agree. This i s the only remedy available to a person aggrived. Save, of course, fo r questions i n the House which' Parliament i t s e l f did not consider suitable. Else why did i t set up a committee of investigation? I f the Minister i s to deny the complaint a hearing - and a remedy - he should at least have good - 99 -reasons f o r his r e f u s a l : and, i f asked, he should give them. I f he does not do so, the court may i n f e r that he has no good reason. I f i t appears to the court that the Minister has been, or must have been, influenced by extraneous considerations which ought not to have i n -fluenced him - or, conversely, has f a i l e d , or must have f a i l e d , to take into account considerations which ought to have influenced him - the court has power to i n t e r f e r e . " 59. Mullan, D.J.; Administrative Law CCarswell: Toronto 1973), para-graphs 45-49. 60. I b i d , paragraph 48. 61. For example, see Regina v. Labour Relations Board; Ex parte H a l l (.1963), 39 D.L.R. C2d) 113 and f o r more d e t a i l s see i n f r a , p. 42. See also Reid, Robert F. Bias and the Tribunals (1970) 20 Univer-s i t y of Toronto Law Journal, p. 119. - 100 -FOOTNOTES: CHAPTER I THE RENTALSMAN 1. Established i n Residential Tenancy Act, S.B.C..1977, c. 61. 2. In the Landlord and Tenant Act, 1974 (B.C.) c. 45. 3. K l i p p e r t , G.B.; Residential Tenancies i n B r i t i s h Columbia (Coswell Toronto 1976) p. 5. 4. For example, Vancouver Rental Accommodation Board. 5. K l i p p e r t , Supra, note 3. 6. Law Reform Commission of B r i t i s h Columbia, Report on Landlord and Tenant Relationships: Residential Tenancies. (LRC 13, 1973). Here-af t e r referred to as the Report. 7. I b i d , p. 27. 8. I b i d , p. 9. 9. Kli p p e r t , Supra, note 3, p. 5. 10. Supra, note 2. 11. Residential Tenancy Act, S.B.C. 1977, c. 61, hereafter referred to as the Act. 12. Some parts, of no importance to t h i s thesis,. had other dates of com-ing into force. 13. The Act, s. 42(1). 14. I b i d . 15. I b i d , s. 45(2). 16. The Public Service Act. 17. The Act, s. 45(7). 18. The Report, Supra, note 6, p. 42. The f i r s t appointed rentalsman, Mr. Barry Clark, i s a radio-broadcaster and former L i b e r a l Member of the Leg i s l a t i v e Assembly i n B r i t i s h Columbia. 19. Ibid. 20. Klippe r t , Supra, note 3, p. 197. 21. I b i d , p. 195. - 101 -22. Greenhut v. Scott, [1975] 4 W.W.R. 645 (B.C.). 23. Amendment, 1975, c. 4, s. 9. 24. The Act, s. 45(8). 25. Supra, p. 14. 26. The Report, Supra, note 6, p. 31. 27. The Act, s. 51(1). 28. I b i d , s. 51(2). 29. I b i d , s. 51(2)(1), see also Klipp e r t , Supra, note 3, p. 196. 30. I b i d , s. 51(2)(f). 31. I b i d , s. 51(2)(t). 32. I b i d , s. 51(2)(s). 33. I b i d , s. 51(2)(x). 34. Kl i p p e r t , Supra, note 3, p. 197. 35. Supra, note 22. 36. I b i d , p. 650. 37. The Report, Supra, note 6, p. 40. 38. The Act, s. 52(a). 39. I b i d , s. 52(b). 40. Ib i d , s. 52(c).. 41. I b i d , s. 52(d). 42. Interview with the Rentalsman, Mr. Barry Clark, Feb. 21, 1978. 43. Office of the Rentlasman: Monthly S t a t i s t i c s , December 1977, (Janu-ary 24, 1978). 44. I b i d , however, disputed termination f i l e s were 1.665. 45. Ibid. Of the one hundred cases that went to a hearing, approximately 50% were not more formal than required i n s. 48 of the Act, some of the hearings being held over the telephone, f o r example. Mr. Barry Clark said that his o f f i c e encourages a settlement, but holds strongly that hearings are necessary as a r i g h t . One of the main advantages of hearings, he f e e l s , was that during them, 50% of the cases were*:, settle d due to the f a c t that the parties involved had a chance to "get a l o t o f f t h e i r chests". - 102 -46. Ib i d . 47. I b i d , table 3. 48. I b i d , table 1. 49. The Report, Supra, note 6, p. 31. 50. Supra, p. 18. 51. Redman v. Siegler, [1976] 3 W.W.R. 609 (B.C.) p. 616. 52. I b i d , see Supra, p. 18. 53. Section 50(3) refers back to s. 49, which states: The rentalsman and the commission have the power, priv i l e g e s and protection of a commissioner under sections 7, 10, and 11 of the Public Inquiries Act. 54. The R e p o r t S u p r a , note 6. 55. I b i d , p. 38. 56. I b i d , p. 39. 57. Supra, p. 19. 58. The Report, Supra, note 6, p. 39. 59. Supra, note 22. 60. The Act, s. 45(8). 61. Supra, note 22. 62. Supra, note 22, p. 650. - 103 -FOOTNOTES: CHAPTER I THE FIRE MARSHAL 1. The F i r e Marshal Act, R.S.B.C. 1960, c. 148 (hereafter referred to as the Act.) 2. Jenns, H.K.: A Study of City of Vancouver F i r e Bylaw No. 2193, 1976. 3. Ibid. 4. The Act, Supra, note 7, s. 9(1)(a)(b). 5. I b i d , s. 17(1). 6. Ib i d , s. 36(1). 7. Ibid,. s. 6(1)(a). 8. Ib i d , s. 9 ( e ) ( i ) . 9. Ib i d , s. 9 ( e ) ( i i ) . 10. I b i d , s. 9 ( e ) ( . i i i ) . 11. I b i d , s. 9 ( e ) ( i v ) . 12. I b i d , s. 10(1) . 13. I b i d , s. 10(1) and (2). 14. I b i d , s. 12(1). 15. I b i d , s. 13(2) . 16. I b i d , s. 14. 17. I b i d , s. 17(1) and (2) and s. 18. 18. I b i d , s. 17(1). 19. I b i d , s. 20(1). 20. I b i d , s. 20(2) . 21. I b i d , s. 17(2)(a). 22. I b i d , s. 17(2)(b). 23. I b i d , s. 19(1). 24. Interview with Inspector W.C. M i l l a r , Office of the F i r e Marshal, February 20th, 1978. - 104 -25. Annual Report of the F i r e Marshal f o r 1974, (B.C.). 26. Supra, note 24. 27. The Vancouver Sun, Monday February 6th, 1978. 28. The Act, Supra, note 7, s. 31-41. 29. Supra, note 24. 30. Law Reform Commission of B r i t i s h Columbia, Report on C i v i l Rights, Part 3: Procedure Before Statutory Agencies (LRC 17, 1974). 31. I b i d , p. 40. 32. Supra, p. 24. 33. The Act, Supra, note 1, s. 17(1). 34. I b i d , s. 19(1). 35. I b i d , s. 31-41. 36. R. v. Barry, [1950] 1 D.L.R. 284 (N.B.C.A.). 37. The Act, Supra, note 1, s. 21(e). 38. I b i d , s. 21(3). 39. Fefferman v. McCargar, [1947] 2 W.W.R. 742. 40. Supra, note 24. 41. Ibid. 42. The Act, Supra, note 1, s. 17(.l). 43. I b i d , s. 17(2). 44. Supra, note 39. 45. I b i d , pp. 746-747. 46. Supra, note 24. 47. Re F i r e Prevention Act (.1963), 42 W.W.R. 568 (Sask.). 48. I b i d , p. 567. 49. Supra, note 36. 50. I b i d , p. 289. 51. Supra, note 39. - 105 -52. I b i d , p. 748. 53. Supra, note 24. 54. The Act, Supra, note 1, s. 17C2). 55. R. v. Castle (1941), 82 C.C.C. 318 (B.C.). 56. I b i d , pp. 319-320. - 106 -FOOTNOTES: CHAPTER I THE LABOUR RELATIONS BOARD 1. Labour Code of B r i t i s h Columbia Act, R.S.B.C. 1973, c. 122, here-a f t e r referred to as the Code. 2. Ib i d . 3. Labour Code of B r i t i s h Columbia Regulations, Office Consolidiation 1977, hereafter referred to as the Regulations. 4. The Code, Supra, note 1, s. 12(1). 5. I b i d , s. 12(2). 6. Weiler, Paul C: The Administrative Tribunal: A View From The Inside, (1976), 26 University of Toronto Law Journal 193, a t t . p. 199. 7. The Code, Supra, note 1, s. 26(2). 8. Weiler, Supra, note 6, p. 199. 9. The Code, Supra, note 1, s. 13(1). 10. I b i d , s. 13(2). 11. I b i d , s. 13(3). 12. I b i d , s. 14(1). 13. I b i d , s. 16. 14. I b i d , s. 8(2). 15. I b i d , s. 96(l)(a)(b). 16. Arthurs, H.W.: "The Dullest B i l l " : Reflections on the Labour Code of B r i t i s h Columbia, (1977), 9 University of B r i t i s h Columbia Law Journal, 280, p. 281. 17. The Code,. Supra, note 1, s. 39-60. 18. Weiler, Supra, note 6, p. 198. 19. The Code, Supra, note 1, s. 8. 20. I b i d , s. 79-91. This area was p r i o r to the Code, and was l e f t to the exclusive j u r i s d i c t i o n of the Courts. 21. Weiler, Supra, note 6, pp. 200-201. - 107 -22. Ibid. 23. I b i d , P- 203. 24. Ibid. 25. I b i d , P- 205. 26. I b i d , P- 201. 27. I b i d , P- 201. 2 8. Interview with Mr. D. Jordan, employee of the LRB i n Vancouver, March 21, 1978. 29. Ibid. 30. Ibid. 31. Weiler, Supra, note 6, p. 201. 32. I b i d , p. 203. Here Weiler writes: "There are some points i n a c o l l e c t i v e bargaining r e -l a t i o n when a f i r m , binding order i s the best tech-nique to end a troublesome problem. In other d i s -putes a voluntary settlement simply i s not achievable. For each of these si t u a t i o n s , Board adjudication r e -mains a l i v e option." 33. I b i d , p. 204. 34 . o The Code, Supra, note 1, s. 21. 35. Ibid. 36. See Supra, note 1, and 3. 37. The Regulations, Supra, note 3, s. 21. 38. The Code, Supra, note 1, s. 8(1). 39. I b i d , s. 40(3). 40. I b i d , s. 21. 41. I b i d , s. 40(3). 42. The Regulations, Supra, note 3, s. 42. 43. I b i d , s. 7. 44. I b i d , s. 11. 45. I b i d , s. 12. - 108 -46. Regina v. Labour Relations Board (B.C.); Ex parte Lodmis Armoured  Car Service Ltd. (.1964), 42. D.L.R. (2d) 49. 47. Re Robinson, L i t t l e 8 Co. Ltd., [1976] 1 W.W.R. 171. 48. I b i d , p. 173. 49. The Code, Supra, note 1, s. 19(2). 50. The Regulations, Supra, note 3, s. 13. 51. I b i d , s. 22. 52. I b i d , s. 16. 53. I b i d , s. 13. 54. Weiler, Supra, note 6, p. 203. 55. I b i d , p. 204. 56. For example, the Code, Supra, note 1, s. 21 and s. 40(3). 57. Weiler, Supra, note 6, p. 204. 58. The test most commonly used i s i f a reasonable man would f e e l there i s a r e a l or reasonable l i k e l i h o o d of bias. 59. Regina v. Ontario Labour Relations Board;; Ex parte H a l l , (1963), 39 D.L.R. (2d) 113. 60. I b i d , the headnote, p. 113. 6 i ; I b i d . 62. Regina v. B r i t i s h Columbia Labour Relations Board; Ex parte Inter- national Union of Mine, M i l l S Smelter Workers, (1964), 45 D.L.R. (2d) 27. 63. I b i d . - 109 -FOOTNOTES: CHAPTER I I TWO ADMINISTRATIVE PROCEDURAL CODES 1.. The Administrative Procedures Act, Alberta, 1966, c. 1. 2. The Statutory Powers Procedure Act, S.O. 1971, c. 47 Cin t h i s sub-section referred to as the Act). 3. The Administrative Procedure Act, 5 U.S.C. 551-559 (referred to as APA). 4. See Mashaw, J.L. and M e r r i l l , R.A.: Introduction to the American Public Law System (St. Paul, Minn., West Publ. Co.) 1975, p. 211. 5. Law Reform Commission of B r i t i s h Columbia, Report on C i v i l Rights, Part 3 - Procedure Before Statutory Agencies (LRC 17) 1974, p. 37. 6. Supra., note 2. 7. Supra, note 3. 8. Royal Commission "Inquiry Into C i v i l Rights" 1964 (hereafter r e -ferred to as the Commission). 9. Royal Commission "Inquiry Into C i v i l Rights" Report No. 1, 1968 (hereafter referred to as the McRuer Report). 10. The Statutory Powers Procedure Act, S.O. 1971, c. 47. 11. The Public Inquiries Act, S.O. 1971, c. 49. 12. The J u d i c i a l Review Procedure Act, S.O. 1971, c. 48. 13. McRuer Report, No. 1, Vol. 1, p. 23. 14. I b i d , p. 212. 15. I b i d , p. 211. 16. Mundell, D.W., Manual of Practice on Administrative Law and Proced-ure i n Ontario, Department of Jus t i c e £ Attorney-General, 1972, p. 4. 17. Atkey, Ronald G., The Statutory Powers Procedure Act, 1971, (1972) 10 Osgoode H a l l Law Journal 155, pp. 156-157. See also Mundell, Supra, note 16, p. 4. 18. Re Robertson et a l . and Niagara South Board of Education (197*0, 41 D.L.R. (3d) 57. 19. I b i d , the headnote p. 57. - 110 -20. Mundell, Supra, note 16, p. 5. 21. Re Carringtori's Building Centre Ltd. arid Ontario Housing Corporation (1974), 43 D.L.R. (3d) 178. 22. I b i d , p. 181. 23. The Act, Section 6(2)(a) and (b). 24. I b i d , Section 6(2)(c). 25. Re Seven-Eleven Taxi Co. Ltd. and City of Brampton (1976), 64 D.L.R. (3d) 401. 26. I b i d , p. 405. 27. Atkey, Supra, note 17, p. 164. 28. Supra, note 25. 29. Mundell, Supra, note 16, p. 13. 30. See Supra, p. 48. 31. The Act, Supra, note 2, s. 4. 32. I b i d , s. 9. 3 3. See Supra, p. 2. 34. Mundell, Supra, note 16, p. 23. 35. I b i d , p. 18. 36. I b i d , p. 15. 37. The Act, Supra, note 2, s. 23(3). 38. See Supra, p. 54. 39. The Act, Supra, note 2, s. 23(2). 40. See Supra, p. 12. 41. Mundell, Supra, note 16, p. 22. In Re DiNardo and Liquor Licence  Board of Ontario (1975), 49 D.L.R. (3d) 537, one of the questions involved was whether the nineteen page summary, and h a l f page long conclusion of the proceedings before the Liquor Licence Board was adequate as "written reasons". The judge held that i t was not, be-cause i t did not "set f o r t h adequate reasons f o r the decision as i t makes no findings and refers to no consideration bearing upon the re s u l t stated." (at p. 547). 42. Mundell, Supra, note 16, p. 22. This d i s t i n c t i o n i s here made. However, i t i s put within brackets. - I l l -43. Administrative Procedure Act, 5 U.S.C. 551-559 (.hereafter referred to as APA). 44. Attorney General's Manual on the Aidministrative Procedure Act, W.M. W. Gaunt £ Sons Inc. F l o r i d a , r e p r i n t 1975, p. 5. 45. Administrative Procedure i n Government Agencies, Report of the Committee on Administrative Procedure, University Press of V i r g i n i a , 1968, p. v i . 46. Ibid. 47. Ibid. 48. Supra, note 44, p. 5. 49. Ibid. 50. Ibid. 51. Ibid. 52. Ibid. 53. I b i d , p. 6. 54. Ibid. 55. Ibid. 56. Ibid. 57. Mashaw and M e r r i l , Introduction t o the American Public Law (St. Paul, Minn. 1975), p. 211. 58. I b i d , however, a revised Model State Administrative Procedure Act was passed i n 1961. 59. APA, 551(1). 60. Ibid. 61. I b i d , 551(4). 62. I b i d , 551(4). 63. Supra, note 44, p. 14. 64. Ibid. 65. Ibid. 66. APA, 551(6). 67. I b i d , 551(7). - 112 -68. Supra, note 44, p. 17. 69. APA, 554(a). 70. Supra, note 44, p. 41. 71. Ibid. 72. APA, 544(a)(1). 73. Ibid. 74. I b i d , 554(b)(1). 75. I b i d , 554(b)(2). 76. I b i d , 554(b)(3). 77. Supra, note 43, .p. 47. 78. In the Canadian common law there are no rules regarding separation of powers within a t r i b u n a l . The only common law r e s t r i c t i o n s i m i l a r to a separation of powers i s that a decision-maker cannot hear an appeal from his own decision. The courts c l a s s i f y t h i s as a breach of the rules of natural j u s t i c e regarding bias. See R. v. Alberta Security  Commission Ex parte Albrecht (1963), 36 D.L.R. (2d) 199, and King v. The University of Saskatchewan, [1969] S.C.R. 678, where the decision was reversed as i t involved the conferring of degrees. 79. APA 554(d)(2). 80. I b i d , 552(d). 81. However, i n the United States they also have a Freedom of Information  Act, 5 U.S.C.A. p.552, dealing with the publication of agency organ-i z a t i o n procedures, p o l i c i e s and decisions, etc. Subsection (3) provides that agencies s h a l l make available a l l other " i d e n t i f i a b l e records" at the request of any person. This r u l e i s then supple-mented by nine enumerated exemptions from the disclosure of agency records. 82. APA 554. 83. I b i d , 556(d). 84. I b i d , 555(b). 85. I b i d , 556(d). 86. I b i d , 557(b). 87. I b i d , 557(b). 88. Ibid. - 113 -89. I b i d , 556(e), 557(c). 90. I b i d , 557(c) (A) (B). 91. Supra, p. 58. 92. APA, 556(b). 93. Ibid. 94. Ibid. 95. Ibid. - 114 -FOOTNOTES: CHAPTER I I I SHOULD BRITISH COLUMBIA ENACT A MINIMUM ADMINISTRATIVE PROCEDURE ACT? 1.. Law Reform Commission of B r i t i s h Columbia, Report on C i v i l Rights, Part 3 - Procedure Before Statutory Agencies (LRC 17) 1974. 2. B i l l : Guarantee of Natural Justice Act, No. 98. Mr. Wallace, 1973 second session. 3. Supra, note 1, p. 55. 4. I b i d , p. 7. 5. I b i d , p. 36. 6. I b i d , pp. 38-43. 7. Ib i d , p. 39. 8. Ibi d , pp. 43-46. 9. W i l l i s , John: The McRuer Report: Lawyers' Values arid C i v i l Servants' Values, (1968), 18 University of Toronto Law Journal 351. 10. Supra, note 1, p. 5, p. 39. 11. Supra, note 9, p. 358. 12. Supra, note 1, p. 17. 13. Royal Commission, Inquiry Into C i v i l Rights, Report 1 (Ontario 1968) McRuer Report. 14. I b i d , p. 146. 15. Ibid. 16. I b i d , p. 147. 17. Ibid. 18. Public and Adnrinistrative Law Reform Committee, Administrative T r i -bunals Constitution Procedure and Appeals Report, New Zealand (1970) Orr. G.S., Report on Administrative Justice i n New Zealand (Welling-ton, New Zealand), 1964. 19. Keith, K.J., A Code of Procedure f o r Administrative Tribunals, number 8 (Auckland, New Zealand), 1974. 20. McRuer, Supra, note 13, p. 210. 21. I b i d , p. 211 and 212. - 115 -22. I b i d , p. 211. 23. Ibid. 24. I b i d . 25. In an interview with both, the rentalsman, Mr. B. Clarke, as he then was, and Inspector M i l l a r , they f e l t that a minimum adminis-t r a t i v e procedure act would be a help. The rentalsman s p e c i a l l y emphasized the educational value of such an act. He had found one of the major problems he had i n the present system was i n getting h i s s t a f f to understand the concept of natural j u s t i c e . 26. See, f o r example, McRuer report, Supra, note 13, p. 210. 27. Report of the Committee on Administrative Tribunals and Enquiries (The Frank's Committee)(London, 1957). 28. Law Reform Commission of B r i t i s h Columbia, Supra, note 1. 29. McRuer Report, Supra, note 13. 30. I b i d , p. 211. 31. Law Reform Commission of B r i t i s h Columbia, Report on C i v i l Rights, Part 3 - Procedure Before Statutory Agencies (LRC 17) 1974, p. 11. 32. Ibid. 33. Ibid. 34. Ibid. 35. I b i d , p. 32. 36. Supra, p. 50. 37. The Statutory Powers Procedure Act, S.O. 1971, c. 47. 38. Supra, note 31, p. 11. 39. The Administrative Procedure Act, 5 U.S.C. 551-559. 40. Supra, p. 63. 41. Report on Regulatory Agencies to the President - E l e c t , Senate Judic-i a r y Committee, 86th Congress, 2nd session (I960) p. 16. 42. Davis, Kenneth Culp; Discretionary Justice: A Preliminary Inquiry. University of I l l i n o i s ' P r e s s , C4th pri n t ) (.1977) p. 129. 43. I b i d , p. 14. Davis' book includes several examples of non-compliance, f o r example, p. 129. 44. See footnote 78 i n Chapter I I . - 116 -45. Supra, note 37, s. 3(1). 46. Re Robertson et a l . arid Niagara South/Board of Education (1974), 41 D.L.R. (3d) 57. See also Supra, p. "4lL 47. This i s done i n the Alberta Administrative Procedures Act, R.S.A. 1970 c. 2. 48. Supra, note 31. 49. I b i d , pp. 41-42. 50. Supra, p. 25. 51. Supra, note 31, p. 40. 52. Supra, note 47, s. 3. 53. Supra, note 37, s. 3(1). See Supra p. 48. 54. This i s taken from the solution found i n the Canadian B i l l of Rights, S.C. 1960, c. 44, R.S.C. 1970, s. 2. 55. I f e e l that i t i s unnecessary to enact anything "for greater c e r t a i n t y , but without r e s t r i c t i n g the generality of the foregoing", which i s the common drafting method used i n Canada. This, however, may w e l l be i n -fluenced by the fact that I.am used to a di f f e r e n t l e g i s l a t i v e tech-nique . 56. Royal Commission Inquiry Into C i v i l Rights, Volume 1, Toronto (McRuer Report), (1968), Report on Administrative Justice i n New Zealand. Orr, G.S. (Wellington, New Zealand) (1964). 57. Englander, A. and Marantz, J . ; Required: An Administrative Procedure  Act f o r Ontario (1960-63), 2 Osgoode H a l l Law Journal 1976. Harris, M.C.; A C r i t i c a l Analysis of the Composition, Hearing Procedure, and  Appellate Structure and Powers of South Australian Administrative  Tribunals (1971-72), 4 Adelaide Law Review 489. 58. W i l l i s , John; The McRuer Report: Lawyers' Values and C i v i l Servants' Values, (1968), 18 University of Toronto Law Journal 351. 59. Supra, note 37. 60. There does not appear to be any c r i t i c a l evaluation of what happened a f t e r the enactment i n 1971. 61. Supra, note 31, p. 43. 62. I b i d , p. 22. 63. There may wel l be other rules that could have a place i n an Adininis-t r a t i v e Procedure Act, however, they l i e outside the scope of t h i s thesis. - 117 -64. See Supra, note 56 and 57, where a l l writers have suggested a notice requirement along these l i n e s . 65. Ihid. For a d i s t i n c t i o n between communication and hearings, see i n f r a P- 81. 66. Naturally, a notice requirement i s applicable only when i t f i l l s a purpose, as i t might not be necessary i n application cases not i n -volving a t h i r d party, and where the decision i s more a matter of form, f o r example, s o c i a l assistance, family allowance, or the r e -newal of a l o s t driver's licence. 67. See Supra, pp. 35-36. 68. See Supra, pp. 77-78. 69. In Sweden the 'AdnuLriistrative Procedure Act includes a po s i t i v e declaration to the effect that c i v i l servants s h a l l help and guide the involved party i n order to enable him to present his case. Thus, i f the party does not understand the issue, or f e e l s the need f o r further information regarding p a r t i c u l a r s , the c i v i l servants are under a duty to supply him with the necessary information. Forvalt- ningsrattslagen No. 290, 1971. 70. Supra, note 37, s. 3(1). 71. Residential Tenancy Act, S.B.C. 1977, c. 61, see Supra, p. 18. What a "hearing" e n t a i l s varies from statute to statute, and from court ot court. For further reference see Reid, R.F.; Administrat-ive Law and Practice. Toronto, Butterworths (1971), s p e c i a l l y chapter 2; The Nature of the Hearing, pp. 53-101. In B r i t i s h Columbia, the hearing requirement can be complied with by a phone c a l l , as i s the case with the rentalsman. I t can also mean a written communication, as i s the case f o r the Superintendant f o r Credit Unions when he makes in q u i r i e s into the a f f a i r s of the Credit Unions. The l a t t e r i s due to the provision made i n the Credit Union  Act, S.B.C. 1975, c. 17, s. 178, which states that everyone addressed by the Superintendant " s h a l l reply promptly to the inquiry and, i f so required, i n w r i t i n g . " The hearing requirement can even be ex-pressly excluded, as i s the case i n the 'Societies Act, S.B.C. 1977, c. 80. Here, section 91 provides: "Except where otherwise expressly specified i n t h i s Act or the regulations, i t i s not necessary f o r the minis-t e r , the commission, the r e g i s t r a r , or any other person to hold a hearing as to receive submissions as a condit-ion precedent to the exercise of a power, function or duty under t h i s Act." 72. After the Swedish Forvaltningsrattslag, 1971, No. 290, s. 15. 73. Stromberg, Hakan; Allman Fdrvaltriirigsratt (Lund, Sweden) 1974 (7d) p. 117. 74. Forvaltningsrattslagen, Supra, note 72, s. 15(4). - 118 -75. The F i r e Marshal Act, R.S.B.C. 1960, c. 148, 76. Ib i d , s. 17. 77 . Supra, note 37. 78. I b i d , s. 8. 79, 80 81. 82, 89, 90. 91. The suggested r u l e i s b a s i c a l l y the same as that i n s. 14 of the Swedish Administrative Act, Supra, note 69. In Sweden, public documents and information are made re a d i l y available t o the public. A person involved i n administrative proceedings has an even greater freedom of information. This Swedish "openess" has attracted a great deal of attention frcm various common law j u r -i s d i c t i o n s . From a Swedish view point, i t i s d i f f i c u l t t o appreciate the fa c t that an administrative decision can come under j u d i c i a l review, f o r example, challenged by a breach of natural j u s t i c e , without a time l i m i t a t i o n f o r t h i s appeal p o s s i b i l i t y . This appears to be the solution generally accepted. See, f o r example, Orr, G.S.; Report on Administrative Justice i n New Zealand, (1964) paragraph 195 and paragraph 216. However, the Ontario Act, Supra, note 37, has some basic rules of evidence. Supra, p. 55. See also McRuer Report, Supra, note 56, pp. 216-217. McRuer Report, Supra, note 56, p. 215. 83. Ibid. 84. Ibid. 85. Interview with the rentalsman, Mr. B. Clark, (as he then was), Feb. 21st, 1978. I t seems impossible, however, t o assure the r i g h t to counsel and exclude Legal Aid. 86. McRuer Report, Supra, note 56, p. 216. 87. Supra, note 37. 88. I b i d , s. 10(c). See al s o , Orr, Supra, note 81, paragraph 198 and paragraph 216 where he suggests that the r i g h t to cross-examination should be encompassed i n a proposed administrative act f o r New Zealand. W i l l i s , John; The McRuer Report: Lawyers' Values and C i v i l Servants' Values (1968), 18 University of Toronto Law Journal, pp. 358-359. I f u l l y r e a l i z e that to admit to the fa c t that I would prefer cross-examination to be l e f t out, i s almost a sacrilege i n the common law countries. 92. This would merely be a c o d i f i c a t i o n of the common law, see Supra, p. 12. ' - 119 -93. Supra, note 47. 94. I b i d , s. 8. 95. Supra, note 81, paragraph 216. 96. Supra, note 37. 97. I b i d , s. 17 98. Supra, note 71, s. 17. 99. The exemptions are not mandatory. The Act states that the tribunals may omit the reasons. 100. See Supra, p. 30. 101. See Supra, p. 41. 102. See Supra, p. 58. 103. Reid, Robert F.; Bias and the Tribunals (1970), 20 University of Toronto Law Journal 119, pp. 119-120. 104. Supra, note 71, s. 4. 105. Supra, note 73, p. 102. 106. See Supra, p. 32. 107. Regina v. Ontario Labour Relations Board; ex parte H a l l , (1963), 39 D.L.R. (2d) 113. See case comment, Supra p. 42. 108. Regina v. B r i t i s h Columbia Labour Relations Board, (1964), 45 D.L.R. (2d) 27. See case comment, Supra, pp. 42-43. - 120 -BIBLIOGRAPHY BOOKS Attorney General's Manual on the Administrative Procedure Act; F l o r i d a , W.M.W. Gaunt £ Sons Inc., r e p r i n t 1973. Davis, Kenneth Culp; Discretionary Justice - A Preliirdjiary Inquiry. Chicago, University of I l l i n o i s Press, 4 pr i n t 1977. DeSmith, S.A.; J u d i c i a l Review of Administrative Action. London, Stevens S Sons Ltd., (3d) 1973. Finkelman, J . ; The Ontario Labour Relations Board and Natural Justice. Queen's University of Kingston, I n d u s t r i a l Relations Centre, 1965. Gellhorn, Ernest; Administrative Law and Process i n a Nutshell. St. Paul, Minnesota, West Publishing Co. 1972. Gellhorn, Walter and Byse, Clark: Administrative Law. University Case-book Series, The Foundation Press Inc. 1976. Klippert, George B.; Residential Tenancies i n B r i t i s h Columbia. Toronto. Carswell 1976. Laux, Frederick A.; The Administrative Process. University of Alberta, Faculty of Law (3d) 1977. Mashaw, Jerry L. and M e r r i l , Richard A.; Introduction to the American Public Law System. St. Paul, Minnesota, West Publishing Co. 1975. Mullan, David, J . ; Administrative Law. Toronto, Carswell (2nd p r i n t ) 1973. Mundell, D.W.; Manual of Practice on Administrative Law and Procedure i n Ontario. Toronto, Department of Justice and Attorney-General 1972. Reid, Robert F.; Administrative Law and Practice. Toronto, Butterworths 1971. Stromberg, Hakan; Allman Forvaltningsratt. Lund Sweden, Gleerups (7d) 1974. Stromberg, Hakan; S p e c i e l l Forvaltningsratt. Lund Sweden, Gleerups (2d) 1975. Wade, H.W.R.; Administrative Law. Oxford, Clarendon Press (3d) 1971. Wade, H.W.R. ; Towards Administrative Justice. Ann Arbor, University of Michigan Press, 1963. Warren, George (e d i t o r ) ; The Federal Administrative Procedure Act and the Administrative Agencies. New York, New York, University School of Law I n s t i t u t e , 1947. - 121 -Wester-berg, Ole; Allman Forvaltningsratt. Stockholm, Sweden, Norstedt (2d) 1975. - 122 -PERIODICALS Angus, W.H.; The Individual and the Bureaucracy: J u d i c i a l Review -Do We Need It? (1974), 20 M c G i l l Law Journal 177. Arthurs, H.W.; The Dullest B i l l " : Reflections on the Labour Code of B r i t i s h Columbia (1974), 9 University of B r i t i s h Columbia Law Review Atkey, Ronald G.; The Statutory Powers Procedure Act, 1971 (1972) 10 Osgoode H a l l Law Journal 155. Davis, Kenneth Culp; Separation of Functions i n Administrative Agencies (1947-48) 61 Harvard Law Review 389. Englander, Arnold and Marantz, Gordon; Required: An Administrative Procedure Act f o r Ontario (1969-63) 2 Osgoode H a l l Law Journal 76. Harris, M.C.; A C r i t i c a l Analysis of the Composition, Hearing Proced-ures, and Appellate Structure and Powers of South Aust r a l i a n Adminis-t r a t i v e Tribunals (1971-72), 4 Adelaide Law Journal 389. Hogg, P.W.; The Supreme Court of Canada and Administrative Law 1949-1971 (1973), 11 Osgoode H a l l Law Journal 187. Jobson, Keith; F a i r Procedure i n Parole (1972), 22 University of Toronto Law Journal 267. Jones, David P; Howarth v. National Parole Board: A Comment (1975), 21 M c G i l l Law Journal 434. McFarland, C a r l ; Landis' Report: The Voice of One Crying i n the Wild-erness (1961), 47 V i r g i n i a Law Review 373. Mathieson, D.L.; Executive Decisions and Audi Alteram Partem (1974), New Zealand Law Journal 277. Mullan, David J . ; Fairness: The New Natural J u s t i c e (1975), 25 University of Toronto Law Journal 281. Reid, Robert F.; Bias i n the Tribunals (1970), 20 University of Toronto Law Journal 119. Weiler, Paul C.; The Adininistrative Tribunal: A View from the Inside (1976), 26 University of Toronto Law Journal 193. W i l l i s , John; Canadian Administrative Law i n Retrospect (1974), 24 University of Toronto Law Journal 225. W i l l i s , John; The McRuer Report: Lawyer's Values and C i v i l Servant's Values (1968), 18 University of Toronto Law Journal 351. - 123 -REPORTS Attorney General's Committee on Administrative Procedure, F i n a l Report. Washington, D.C., United States Government Pr i n t i n g O f f i c e , 1941. Law Reform Commission of B r i t i s h Columbia: Report on Landlord and Tenant Relationships: Residential Tenancies (LRC 13) 1973. Report on C i v i l Rights Part 3 - Procedure Before Statutory Agencies (LRC 17) 1974. Report on C i v i l Rights Part 4 - A Procedure f o r J u d i c i a l Review of the Actions of Statutory Agencies (LRC 18) 1974. Report on Administrative Justice i n New Zealand by Orr, G.S., Wellington New Zealand, Owen Government Pr i n t e r , 1964. Report of the Committee on Administrative Procedure: Administrative Procedure i n Government Agencies. Charlotteville, University Press of V i r g i n i a , 1968. Report of the Committee on Administrative Tribunals and Enquiries (Franks Committee). London, Her Majesty's Stationary O f f i c e , 1957. Report on Regulatory Agencies to the President-Elect (Landis Report), Senate Judiciary Committee, 86th Congress 2d Session, 1960. Report on Protection of the C i t i z e n i n Administrative Procedure by Wennergren, B e r t i l , to the 14th International Congress of Administrative Sciences. Brussel, International I n s t i t u t e of Administrative Science, 1969. Report of the Special Committee on Boards and Tribunals to the L e g i s l a t -ive Assembly of Alberta, 1965. Public and Administrative Law Reform Committee of New Zealand; Admin-i s t r a t i v e Tribunals Constitution Procedure and Appeals, 3d report. Wellington, New Zealand, 1970. Public and Administrative Law Reform Committee, Research Paper by Mr. Keith; A Code of Procedure f o r Administrative Tribunals. Auckland, New Zealand, 1974. Royal Commission Inquiry into C i v i l Rights (the McRuer Reports). Toronto, Frank Fogg, 1968. - 124 -OTHER MATERIALS Annual Report of the F i r e Marshal f o r 1974, B r i t i s h Columbia. Jenns, H.K.; A Study of City of Vancouver F i r e Bylaw No. 2193, 1976. Mullan, David J . ; Martineau and Butters v. Matsqui I n s t i t u t i o n Inmate Dis c i p l i n a r y Board: I t s Potential Impact on the J u r i s d i c t i o n of the T r i a l D i v i s i o n of the Federal Court (unpublished). Office of the Rentalsman: Monthly S t a t i s t i c s , December 1977 (January oil i m o *\ - 125 -STATUTES AND REGULATIONS The Administrative Procedure Act, 5 U.S.C. 551-559. The Administrative Procedures Act, Alberta, 1966, c. I. The Credit Union Act, S.B.C. 1975, c. 17. The F i r e Marshal Act, R.S.B.C. 1960, c. 148. Forvaltningsrattslagen, no. 290, 1971 (The Swedish Administrative Pro-cedure Act). The J u d i c i a l Review Procedure Act, S.O. 1971, c. 48. The Labour Code of B r i t i s h Columbia, R.S.B.C. 1973, c. 122. The Labour Code of B r i t i s h Columbia Regulations, Nr. 552-73, as amended (of f i c e consolidation). The Public Inquiries Act, S.O. 1971, c. 49. The Residential Tenancy Act, S.B.C. 1977, c. 61. The Societies Act, S.B.C. 1977, c. 80. The Statutory Powers Procedure Act, S.O. 1971, c. 47. - 126 -CASES Beard of Education v. Rice [1911] A.C. 179. Board of Health f o r the Township of S a l t f l e e t v. Knapman, [1956] S.C.R. 822. Calgary Power v. Copithorne, [1959] S.C.R. 24. Carrington's Building Centre Ltd. v. Ontario Housing Corporation (1974), 43 D.L.R. (3d) 178. DiNardo et a l . v. Liquor Licence Board of Ontario (1975), 58 D.L.R. (3d) 517. Ex parte Beauchamp, [1970] 3 O.R. 607 (Ont. H.C.). Fefferman v. McCargar, [1947] 2 W.W.R. 742 ( A l t a . ) . Re Fi r e Prevention Act (1963), 42 W.W.R. 568. Greenhut v. Scott, [1975] 4 W.W.R. 645 (B.C.). Hlookoff v. City of Vancouver (1968), 67 D.L.R. (2d) 119 (B.C.S.C.). Howart v. Prince George (1958), 14 D.L.R. (2d) 752. Howarth v. National Parole Board (1974), 50 D.L.R. (3d) 349 (S.C.C.). In re H.K. (an i n f a n t ) , [1967] 2 Q.B. 617 (D.C.). King v. The University of Saskatchewan, [1969] S.C.R. 678. The King v. Huntingdon Confirming Authority, [1929] 1 K.B. 698. Klymchuk v. Cowan (1964), 45 D.L.R. (2d) 587. Lazarov v. Secretary of State of Canada (1974), 39 D.L.R. 738 (Fed. C.A.) Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344. Mi t c h e l l v. The Queen (1976), 61 D.L.R. (3d) 77 (S.C.C.). Nakkuda A l i v. Jayaratne, [1951] A.C. 66 ( P . O . Pett v. Greyhound Racing Association Ltd., [1968] 2 A l l E.R. 545 (C.A.). Re Piggot Construction Ltd. v. United Brotherhood of Carpenters £ Joiners  of America (1974), 39 D.L.R. (3d) 311 (Sask. C.A.). R. v. Alberta Security Commission, Ex parte Albrecht (1963), 36 D.L.R. T2d) 199. R. v. Barry, [1950] 1 D.L.R. 284 (N.B.C.A.). - 127 -R. v. Bi r d , ex parte Ross (1963), 38 D.L.R. (2d) 354. R. v. Castle (1941), 82 CX.C. 318 (B.C.). R. v. Gaming Board f o r Great B r i t a i n , Ex parte Benaim and Khaida, [1970] 2 Q.B. 417 (C.A.). R. v. The E l e c t r i c i t y Commissioners, [1924] 1 K.B. 171 (H.L.). Re Ramm, [1976] 3 W.W.R. 609 (B,C). Redman v. Siegler, [1976] 3 W.W.R. 609 (B.C.). Regina v. B r i t i s h Columbia Labour Relations Board, Ex parte International  Union of Mine, M i l l g Smelter Workers (1964), 45 D.L.R. (2d) 27. Regina v. Labour Relations Board (B.C.), Ex parte Loomis Armoured Car  Service Ltd. (1964), .42 D.L.R. (2d) 49. Regina v. Ontario Labour Relations Board, Ex parte H a l l (1963), 39 D.L. R. (2d) 113. Regina v. Ontario Racing Commission, Ex parte Taylor (1971), 1 O.R. 400 (Ont. C.A.). Re Retmar Niagara Peninsula Developments Ltd. v. Farm Products Marketing  Board of Ontario et a l . (1976), 58 D.L.R. (3d) 517. Re Robertson et a l . v. Niagara South Board of Education (1974), 41 D.L. R. (3d) 57. — Re Robinson, L i t t l e S Co. Ltd., [1976] 1 W.W.R. 171. Re Seven-Eleven Taxi Co. Ltd. v. City of Brampton et a l . (1976), 64 D. L.R. (3d) 401. St. John v. Fraser, [1935] 3 D.L.R. 465. Re Thompson v. Lambton County Board of Education (1973), 30 D.L.R. (3d) 33. Toronto Newspaper Guild v. Globe P r i n t i n g , [1953] 2 S.C.R. 18. Re Township of Hamilton v. Rito Investments Ltd. (1973), 30 D.L.R. (3d) 666. ~ Re Wilson v. Law Society of B r i t i s h Columbia (1974), 47 D.L.R. (3d) 760 (B.C.S.C.). ~ ~ 

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