CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
procedures can lead to the reversal of a deci - sion. Finally, the constitution imposes obligations of procedural fairness. The Canadian Charter of Rights and Freedoms imposes a duty of pro - cedural fairness for executive decisions that infringe the right to life, liberty and security of the person protected by Section 7. Moreover, Sec - tion 35 of the Constitution Act, 1982 imposes a duty to consult Indigenous peoples regarding executive decisions that affect their aboriginal and treaty rights, and to accommodate those interests. 10.4 Factual Errors Judicial review accords a high degree of def - erence to findings of fact by administrative decision-makers, which will not be overturned on judicial review unless there is a palpable and overriding error. However, a decision-maker acts unreasonably if their decision cannot be justified on the factual record before it. In addition, it is arguable that if there is a gap in the evidentiary record on a key issue, a decision-maker is under a duty to make inquiries to obtain the requisite evidence. 10.5 Abdication or Fettering of Discretion It is possible to bring a challenge on the basis that the executive decision-maker abdicated or fettered their discretion. A decision-maker must exercise a discretionary power personally, except in the case of a Cabinet minister, who may exercise it through officials. But they may not subdelegate the decision to another official or allow a non-governmental third party to dic - tate their decision. The prohibition on sub-dele - gation, however, leaves a decision-maker free to consult other officials or private parties.
In addition, a decision-maker may not fetter their discretion. The principal context in which this issue has been litigated is the adoption of soft law guidelines that it treats as a binding con - straint on the exercise of discretion. Courts have struck down these soft legal guidelines as illegal fetters on executive discretion. 10.6 Bias It is possible to bring a challenge on the basis that the decision-maker was biased. But the threshold is a very high one. The question is whether a reasonable person, with the requisite information, would perceive that there is a real likelihood of bias – for example, if the decision- maker has a financial interest in the outcome or a personal relationship with a party. Bias may also be institutional – for example, if a decision-mak - er has both prosecutorial and adjudicative func - tions – but if these details are set out in statute, they can only be challenged on constitutional grounds in certain circumstances. 10.7 Unequal Treatment Executive decision-makers must comply with Section 15 of the Canadian Charter of Rights and Freedoms, which prohibits discrimination on enumerated grounds such as race, sex and dis - ability, and analogous grounds such as sexual orientation and marital status. In addition, under administrative law, munici - palities cannot engage in discrimination in their by-laws in a manner which goes beyond the powers authorised by their enabling legislation. The grounds of prohibited discrimination are not found in the Charter, and may include different distinctions among classes of properties, per - sons or businesses. These challenges may be brought in relation to taxation or land use restric - tions. Moreover, municipal discrimination is sub - ject to a reasonableness standard.
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