CIVE 463 Lecture 6: Class 6_W3
25 May 2018
School
Department
Course
Professor
Class 6: Non-common law sources of the duty of procedural fairness
Nicholson; Knight: lack of statutory duty: since there is a delegation to the parties to set the
duties in the K, and still with that apparent impediment, majority found that duty at CML was
found.
Sources of procedure - anchor to build up procedural protections
1. Constitution
a. Charter s. 7
i. When there is a duty to consult; if so, what does it consist in (same
framework of CML duty)
b. Constitution Act 1982 s. 35 - duty to consult
i. Cases arose from the framework: duty to consult any time its action would
infringe an aboriginal or treaty right. Something like an Oakes test applies
if the Crown will engage in an action that infringe aboriginal rights as per
s. 35 Constitution.
ii. Outside the Charter: so the infringement of those rights does not call for a
justification under s. 1. The Court invents that saying that they are not
absolute rights. The infringement has to be proportional and there must be
meaningful consultation (raised to consultation and accommodation) prior
to the Crown engaging in violating their interest.
iii. Sparrow: fiduciary duty. But did not addressed if: clear land claims but
that have not been adjudicated. The Court said that there is not right here
to infringe, so Crown can grant licences freely
iv. Haida: doctrinal novelty - if there is reason to believe that they have a
claim & if the gvt action would irreparably hurt the claim, there is a duty
to consult, and the thickness of the duty depends on the significance of the
right and the level of infringement the Crown’s actions would cause. ++
novel thesis of reconciliation: the point of s. 35 Constitution Act 1982 is to
reconcile the fact that aboriginal people were here first, and recognise that
fact of prior occupation and assertion of assumed Crown sovereignty
(Delamuuk). Mentions aboriginal sovereignty.
c. Bill of Rights s. 2(e) [federal decision bodies] - proxy discussion for Qc Charter
of Rights - quasi constitutional status [Quebec provincial decision bodies]
d. Qc Charter of Rights
2. Statute
a. Home statute
i. Notes: first place to look at always. You can challenge the statute or the
decision as ultra vires, but relatively rare, because the courts have limited
the application of Charter to civil and political but not social and economic
rights. Largely determinative: what the Statute says. Statutory scheme =
framework legislation that does not have a lot of details, very skeleton, ex.
Immigration and Refugee Protection Act: people can come to Canada
under as one of 3 umbrella groups (family members, protected persons,
skilled workers). The Act does not say what is a “skilled worker”. The Act
delegates from parliament to federal cabinet authority to make regulations
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Class 6: non-common law sources of the duty of procedural fairness. Nicholson; knight: lack of statutory duty: since there is a delegation to the parties to set the duties in the k, and still with that apparent impediment, majority found that duty at cml was found. The court invents that saying that they are not absolute rights. The infringement has to be proportional and there must be meaningful consultation (raised to consultation and accommodation) prior to the crown engaging in violating their interest: sparrow: fiduciary duty. But did not addressed if: clear land claims but that have not been adjudicated. You can challenge the statute or the decision as ultra vires, but relatively rare, because the courts have limited the application of charter to civil and political but not social and economic rights. Statutory scheme = framework legislation that does not have a lot of details, very skeleton, ex.
