CASE COMMENTS
CHRONIQUE DE JURISPRUDENCE
The Cabinet and the Constitution: Participatory Rights and
Charter Interests: Manicom v. County of Oxford
Martha Jackman*
Synopsis
The Manicom Case
The Cabinet Appeal Process
Introduction
I.
11.
III. The Constitutionality of the Outcome in Manicom
IV. Cabinet Appeals and Fundamental Justice
Conclusion
Introduction
In pursuit of often competing objectives, government regulatory activity
affects individual welfare in a multitude of ways. It is not surprising then, that
regulatory measures adopted as a result of deliberate policy choice often inter-
fere with interests protected by the Charter. At the same time many regulatory
decisions which threaten Charter rights will never be challenged, either because
* Assistant Professor, Faculty of Law, University of Ottawa. The author wishes to thank John
Manwaring, Kent Roach and Jamie Benidickson for helpful comments on earlier drafts of this
paper, and Kevin Murphy for his able research assistance.
McGill Law Journal 1990
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the harm they cause is significant only in a cumulative sense, or because the
individuals or groups involved are ill-equipped to defend their interests before
the courts. Examples of this abound in welfare,1 health and safety,2 environmen-
tal,3 and prison settings,4 among others. Given this reality the Charter must, to
be fully effective, guarantee that regulatory processes dealing with Charter
related interests do so with respect. Consistent with this objective, the Charter
should be interpreted to require a maximum level of individual and public par-
ticipation in any regulatory decision which threatens Charter protected rights.
In this way, policy choices which affect entrenched rights will be subject to a
greater measure of control, through advance public scrutiny as well as ex post
judicial review.
In addition to increasing the Charter’s potential for safeguarding rights in
the regulatory context, an interpretive approach which focusses on participatory
rights and opportunities finds in the Charter a mechanism for enhancing the
democratic tenor of public decision-making. Many critics of the Charter under-
line the serious challenge it poses for parliamentary democracy.’ They point in
‘Bill C-21, the proposed amendment to the federal Unemployment Insurance Act, is a recent
example of sweeping regulatory reform affecting welfare related interests, made without adequate
participation by those affected. Federal Employment Minister Barbara McDougall characterized
Senators as “frivolous and silly” for unduly prolonging Senate Committee study of the Bill, to
which the Commons Committee devoted only four weeks; see “Senate’s UI Bill defeated in
Commons, The [Toronto] Globe and Mail (21 December 1989) All. For a discussion of the effects
of the Bill on the welfare of the unemployed, see Mouvement Action-ch6mage de Montrdal,
“Mrmoire prsent6 au comit6 16gislatif charg6 d’6tudier le Projet de loi C-21”, 15 August 1989;
on the welfare of women, see Canadian Advisory Council on the Status of Women, Submission
to the Legislative Committee on Bill C-21, an Act to Amend the Unemployment Insurance Act
(Ottawa, Canadian Advisory Council on the Status of Women, September, 1989); and see generally
M. Jackman, “The Protection of Welfare Rights under the Charter” (1988) 20 Ottawa L. Rev. 257.
2See for example K. Cox, “Pediatrician Sees Trauma Among Labrador Children”, The [Toronto]
Globe and Mail (9 October 1989) A4; and M. Wadden, “The Planes of Labrador”, Harrowsmith
(September/October 1989) 36, with regard to the impact of federal military policy on the health
of Innu adults and children subject to noise from low-level NATO training flights over Labrador.
3For example, the Government of New Brunswick’s decision, as part of its spruce budworm con-
trol program for 1989, to increase aerial spraying of a controversial chemical insecticide, fenith-
rothion, by 33%, despite allegations that the insecticide poses a health hazard to both humans and
animals; see “New Brunswick Sprays More Chemical Insecticides in 1989” Alternatives (October/
November 1989) 2.
4See the fact situations at issue in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R.
(4th) 44; and Collin v. Lussier, [1983] 1 F.C. 218, 6 C.R.R. 89, rev’d in part by [1985] 1 F.C. 124,
22 C.C.C. (3d) 124 (F.C.C.A.). See also A.W. MacKay, “Inmates Rights: Lost in the Maze of
Prison Bureaucracy?” (1988) 11 Dalhousie LJ. 698; M. Jackson, “The Right to Counsel in Prison
Disciplinary Hearings” (1986) 20 U.B.C. L. Rev. 221.
5See for example A. Petter & A.C. Hutchinson, “Rights in Conflict: The Dilemma of Charter
Legitimacy” (1989) 23 U.B.C. L Rev. 531; A.C. Hutchinson & A. Petter, “Private Rights/Public
Wrongs: The Liberal Lie of the Charter (1988) 38 U.T.L.J. 278; R.I. Cheffins & P.A. Johnson, The
Revised Canadian Constitution – Politics as Law (Toronto: McGraw-Hill Ryerson, 1986); A.
Petter, “The Politics of the Charter” (1986) 8 Sup. Ct L. Rev. 473; H.J. Glasbeek & M. Mandel,
1990]
CASE COMMENTS
particular to the fact that it gives democratically unaccountable judges near-
absolute power to rule on the propriety of policies adopted by elected and dem-
ocratically responsible governments. However, the promise which the Charter
holds for those seeking greater and better access to government should also be
recognized. This is particularly important in light of the fact that much public
decision-making no longer occurs in Parliament. Many of the decisions which
have the greatest impact on individual welfare are made by Cabinet and by other
parliamentary delegates within government departments, administrative agen-
cies, and quasi-governmental bodies. To the extent that parliamentary control
over much of this decision-making is tenuous at best, it is unrealistic to rely on
representative democracy as the sole avenue for participation in modem govern-
ment.6
If this interpretive reasoning applies to the Charter in general, it is partic-
ularly relevant for section seven, which contains the most basic human rights to
life, liberty, and security of the person, and requires that any deprivation of these
rights must accord with principles of fundamental justice. Considerable consen-
sus exists in Charter scholarship and case law that section seven protects a rel-
atively wide range of personal interests, including those relating both to phys-
ical and psychological security and well-being.7 Once section seven is held to
protect this wider range of interests, the notion of fundamental justice must also
be given an expanded meaning. As Justice Lamer explains in Reference Re
“The Legalisation of Politics in Advanced Capitalism: The Canadian Charter of Rights and
Freedoms” (1984) 2 Socialist Studies 84. For a pre-Charter formulation of this critique, see D.A.
Schmeiser, “The Case Against Entrenchment of a Canadian Bill of Rights” (1973) 1 Dalhousie L.J.
15.6See for example J.R. Mallory, “Curtailing ‘Divine Right’: The Control of Delegated Legislation
in Canada” and R. Schultz, “Regulatory Agencies and the Dilemmas of Delegation” in O.P.
Dwivedi, ed., The Administrative State in Canada-Essaysfor J.E. Hodgetts (Toronto, University
of Toronto Press, 1982) 131 and 89 respectively; J.R. Mallory, “Can Parliament Control the
Regulatory Process?” (Autumn 1983) Canadian Parliamentary Review 6; T. D’Aquino, G.B.
Doem & C. Blair, Parliamentary Democracy in Canada- Issues for Reform (Toronto, Methuen,
1983); P.S. Elder, “The Participatory Environment in Alberta” in P.S. Elder, ed., Environmental
Management and Public Participation (Toronto: Canadian Environmental Law Association, 1975)
101 at 104; D. Fox, Public Participation in the Administrative Process (Ottawa: Law Reform
Commission of Canada, 1979) at 137; H. Chapin & D. Deneau, Citizen Involvement in Public
Policy-Making: Access and the Policy-Making Process (Ottawa, Canadian Council on Social
Development, 1978) at 9-10.
7See Re Singh and Minister of Employment and Immigration, [1985] 1 S.C.R. 177, 17 D.L.R.
(4th) 422; R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385; Collin v. Lussier, supra,
note 4. See also: J.D. Whyte, “Fundamental Justice: The Scope and Application of Section 7 of
the Charter” (1983) 13 Man. L.J. 455; C. Boyle, Sexual Assault (Toronto: Carswell, 1984) at 31-42;
Jackman, supra, note 1; I. Morrison, “Security of the Person and the Person in Need: Section Seven
of the Charter and the Right to Welfare” (1988) 4 J.L. & Social Pol’y 1; I. Johnstone, “Section 7
of the Charter and Constitutionally Protected Welfare” (1988) 46 U.T. Fac. L. Rev. 1; P. Garant,
“Fundamental Rights and Fundamental Justice” in G.-A. Beaudoin & E. Ratushny, eds, The
Canadian Charter of Rights and Freedoms, 2d ed. (Toronto: Carswell, 1989) 331.
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Section 94(2) of the B.C. Motor Vehicle Act, a restrictive interpretation of fun-
damental justice “would strip the protected interests of much, if not most, of
their content and leave the “right” to life, liberty and security of the person in
a sorely emaciated state.”‘
To do justice to the “broad, affirmnative language ‘ 9 in which section seven
rights are expressed, fundamental justice should be read to include the notion
that regulatory decisions which threaten section seven interests are constitution-
ally unacceptable unless the persons or groups affected have had a meaningful
opportunity to participate in the decision-making process. The opportunity to
participate in decisions affecting one’s life, liberty or personal security has been
identified by the courts as a fundamental component of the right to be treated
in accordance with principles of fundamental justice.”0 Participation not only
enhances accuracy and accountability in decision-making, it also fosters the
sense of justice and of human dignity which, as the courts have recognised, are
integral aspects of the rights guaranteed under section seven.
One of the most significant barriers to participation in regulatory decision-
making as it currently stands is the unilateral power to review regulatory deci-
sions which Cabinet enjoys under a number of federal and provincial statutes.”
Building upon the premise that participation is a necessary component of fun-
damental justice within the meaning of section seven, 2 the following discussion
will suggest that where a section seven interest is at issue, failure to ensure
access to Cabinet decision-making renders the outcome unconstitutional. The
argument will be illustrated with reference to Manicom v. County of Oxford3,
an Ontario High Court case in which a section seven challenge to a Cabinet
1[1985] 2 S.C.R. 486 at 501, 24 D.L.R. (4th) 536 at 548.
91bid.
‘See Re Singh, supra, note 7; Jones v. R., [1986] 2 S.C.R. 284, 69 N.R. 241; R. v. Robson
(1985), 19 D.L.R. (4th) 112, 19 C.C.C. (3d) 137 (B.C.C.A.).
ISection 67 of the National Transportation Act, R.S.C. 1985, c. N-20, for example, authorises
the federal Cabinet to review decisions made by the Canadian Transport Commission and the
Canadian Radio-Television and Telecommunications Commission in the following terms:
67. The Governor in Council may at any time, in his discretion, either on petition of any inter-
ested party, person or company or of his own motion, and without any petition or application, vary
or rescind any order, decision, rule or regulation of the commission, and any order that the
Governor in Council may make with respect thereto is binding on the commission and on all the
parties.
The Ontario Consolidated Hearings Act, S.O. 1981, c.20, which is designed to consolidate the
administrative hearings required by a number of provincial statutes, including the Environmental
Assessment Act, R.S.O. 1980, c. 140, the Ontario Municipal Board Act, R.S.O. 1980, c. 347 and
the Planning Act, S.O. 1983, c. 1, contains a similar provision; see infra, note 17.
2For a more thorough examination of this argument, see Jackman, supra, note 1, especially at
308-317; M. Jackman, “Rights and Participation: The Use of the Charter to Supervise the
Regulatory Process” (1990) 4 CJ.A.L.P. 23.
13(1985), 52 O.R. (2d) 137, 21 D.L.R. (4th) 611 [hereinafter cited as Manicom to D.L.R.],
19901
CHRONIQUE DE JURISPRUDENCE
appeal was rejected. Using the case as a background, the paper will conclude
that, notwithstanding its policy rationale, the Cabinet appeal process fails to
meet section seven standards of fundamental justice.
I. The Manicom Case
The Manicom”4 case arose against the background of a dispute between the
Township of South-West Oxford and the County of Oxford over the latter’s
decision to locate a waste disposal site within the Township despite considerable
local opposition. In order to obtain the requisite government approval for the
proposed site, the County applied to a Joint Board appointed under the Ontario
Consolidated Hearings Act 5 to consider the environmental and planning
impacts of the application. After a lengthy public hearing, which lasted some
sixty days and heard from a number of area and expert witnesses, the Board
rejected the County’s application. The Board reached its decision not to approve
the site on a number of grounds. From a hydrogeological perspective, the Board
found the site to be totally inappropriate. Because the soil on the site was com-
posed of sand, silt and gravel and it was riddled with kettles of unknown depth,
there was an inordinately high risk of contamination of underground water by
leachate from waste disposed on the site. Such contamination would affect not
only the immediate site, but the surrounding aquifers, and hence the domestic
and agricultural water supply of all those living in the vicinity.
In addition to its hydrogeological unsuitability, the Board found the site
unacceptable from a social planning perspective. The proposed site, located on
a height of land, was in close proximity to the centre of the village of Salford
and within view of the entire community. Heavy truck traffic to and from the
site, numbering upwards of two hundred trips per day, would share local roads
used by school buses, farm machinery, and pedestrians, including children on
their way to the community centre and school bus pick-up points. Bulldozers
and other heavy equipment working on the site during its hours of operation
would also create serious noise pollution problems for those living in the nei-
ghbourhood. The Board concluded that local residents’ enjoyment of their
farms, homes and community, their physical security and that of their children,
and their health, as well as the health of farm animals using the local water sup-
ply, would all be adversely affected by use of the site. In short, the Board
argued: “[i]f established at this location, the proposed facility … would consti-
tute an integral detrimental element within the fabric of the community”. 6
141bid.
l’Supra, note 11.
16Re Oxford (County) Salford Landfill Site (1983), 15 O.M.B.R. 1 at 39 varying (1982), 15
O.M.B.R. 1. In concluding its decision on the application, the Board acknowledged the limited
resources and difficult task facing the Township and the local residents in challenging the site
McGILL LAW JOURNAL
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Following the hearing and the rejection of its application by the Joint
Board, the County appealed to the Ontario Cabinet, pursuant to section thirteen
of the Consolidated Hearings Act. 7 In its decision on the appeal, Cabinet
explained that it had given careful consideration to the County’s petition, and
to replies submitted by all the parties, including the Township. It also indicated
that a technical review undertaken by the provincial Ministry of the
Environment, which found the proposed site feasible if certain engineering
changes were made to the County’s plan, was also circulated to the parties for
comment. Cabinet concluded that, on the basis of the Environment Ministry’s
review and the parties’ comments, it would vary the Board’s order and approve
the proposed site.”
Faced with the prospect of the disposal site going ahead against the Joint
Board’s findings, the Township launched an appeal to the Ontario High Court
for a declaration that Cabinet’s decision was void for violation of principles of
natural justice and fairness. The Township based its claim on a number of
grounds. First, the Township argued that Cabinet members, including the
Minister of the Environment and the Minister of Municipal Affairs and
Housing, were lobbied by representatives of the County but refused to meet
with representatives of the Township. Second, it claimed that Cabinet accepted
arguments that the waste disposal site was urgently needed, although the
Township and the County had previously agreed not to raise the question of
urgency, and the issue was never addressed before the Joint Board. Third, the
Township asserted that the Ministry of the Environment made submissions and
recommendations to Cabinet, involving matters it had not brought forward dur-
ing the hearing, and at variance with the position it had taken before the Board.
The submission which most disturbed the Township in this regard, and the one
upon which the Cabinet relied in its subsequent decision, was that the waste dis-
posal site could be engineered in such a way as to avoid the risks identified by
the Joint Board. This claim posed particular problems for the Township since,
in its decision on the County’s application, the Board had expressed consider-
able scepticism about the feasibility of an acceptable engineered site. The Joint
Board addressed this issue in the following terms:
application, and ordered to County to pay the Township’s costs, in the amount of $75,000; ibid.
at 41.
17Supra, note 11. Section 13 provides that:
13(1) Upon application, the Lieutenant Governor in Council by order,
(a) may confinm, vary or rescind all or any part of a
decision of a joint board;
(b) may substitute for the decision of a joint board such decision as the Lieutenant Governor in
Council considers appropriate; or
(c) may require a joint board or a different joint board to hold a new hearing as to all or any
part of the matters in respect of which the joint board was established.
18Re Oxford (County), supra, note 16 at 43.
1990]
CASE COMMENTS
Surely a decision that virtually ignores the geology and hydrology of a site, and
one that would rely solely on engineering as the first line of defence, would negate
either the need for or the desirability of terrain assessments in the site selection
process. The safety of any site approved on such a basis would rest entirely upon
the soundness and appropriateness of any engineering technology employed to
ensure safety which, on the evidence, the board is led to believe has not yet
attained such a desirable level of sophistication. 19
The Township’s fourth objection related to the reports upon which the
Ministry of the Environment’s recommendations to cabinet were based. In par-
ticular, the Township objected to the fact that the reports were prepared by
Ministry officials after the Board rendered its decision, at the urging of the
County, and without notice to the Township. Fifth, the Township argued that
while the Environment Ministry subsequently provided the Township with cop-
ies of its submissions to Cabinet, it refused to release the actual technical reports
upon which these were based. Finally, the Township objected to the fact that it
was never provided with an opportunity to fully respond to the issue of urgency,
or to the Ministry of Environment recommendations and reports, before Cabinet
made its decision to approve the site.20
In subsequent court actions, the Attorney-General of Ontario and the
County applied unsuccessfully to have the Township’s claim struck out,2 and
the Township applied unsuccessfully for access to Cabinet documents in rela-
tion to its claim.’ In the latter case, the Township sought access to all letters and
documents prepared, exchanged, or received by the Minister of the Environment
in relation to the County’s appeal to Cabinet, and to the Cabinet’s deliberations
on the issue. In its decision on the Township’s claim for access, the Ontario
High Court rejected the local Master’s argument that the documents should be
disclosed since they involved quasi-judicial proceedings rather than matters of
government policy.’ Instead the Court held that the government interest in non-
disclosure of the documents should prevail over the private interest in access.’
The Manicom case involved a parallel action by the owners of farms adja-
cent to the proposed waste disposal site, on their own behalf. Using facts and
arguments similar to the ones raised by the Township in its legal challenge, the
plaintiffs asked for a declaration that Cabinet’s decision to approve the site vio-
191bid. at 37-38.
2 The Township’s statement of claim is extracted in South-West Oxford (Township of) v. A.G.
Ontario (1985), 50 O.R. (2d) 297 at 311-12, 15 Admin. L.R. 1 at 19-21 (H.C.).
21South-West Oxford (Township of) v. A.G. Ontario (1985), 8 Admin. L.R. 30, 44 O.R. (3d) 376
(H.C.).
22South-West Oxford (Township of) v. A.G. Ontario, supra, note 20. The issue of access to
Cabinet documents was comprehensively reviewed in the subsequent Supreme Court of Canada
decision of Ontario v. Carey, [1986] 2 S.C.R. 637, 22 Admin. L.R. 236.
23South-West Oxford (Township of) v. A.G. Ontario, ibid. at 7-8.
24Ibid. at 21.
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lated their rights under section seven of the Charter. The majority of the
Ontario High Court allowed the County and the Attorney-General’s motion to
dismiss the plaintiffs’ claim on the grounds that the complaints related essenti-
ally to the use and enjoyment of property, and as such were not covered by sec-
tion seven of the Charter.26 In his dissenting opinion, Justice Potts disagreed
with the majority’s characterization of the issues at stake in the case. He argued
that the plaintiffs’ section seven claim was primarily health-based, and in par-
ticular, that it related to the injury which the plaintiffs and their families would
suffer from contamination of the wells from which they drew their drinking
water by leachate from the site. In Justice Potts’ dissenting view, such health-
based concerns were legitimate ones, which should be permitted to proceed to
trial.27
II. The Cabinet Appeal Process
The dominant rationale for preserving the Cabinet appeal power is summa-
rised by Justice Estey, in his decision in the Inuit Tapirisats case, in the follow-
ing terms:
Indeed it may be thought by some to be unusual and even counter-productive in
an organized society that a carefully considered decision by an administrative
agency, arrived at after a full public hearing in which many points of view have
been advanced, should be susceptible of reversal by the Governor in Council. On
the other hand, it is apparently the judgment of Parliament that this is an area inor-
dinately sensitive to changing public policies and hence it has been reserved for
the final application of such a policy by the executive branch of Government. 29
25Supra, note 13. In addition to their Charter claim, the plaintiffs sought an injunction based on
nuisance, negligence, the rule in Rylands v. Fletcher, and a breach of riparian rights.
2Ibid. at 619.
27Ibid. at 630.
28A.G. Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, 115 D.L.R. (3d) 1 [hereinafter
Inuit Tapirisat cited to D.L.R.]. In the Inuit Tapirisat case, the Canadian Radio-Television and
Telecommunications Commission rendered a decision, following a lengthy public hearing involv-
ing a number of parties, approving an application by Bell Canada for a telephone rate increase.
Pursuant to section 64(1) (now section 67) of the National Transportation Act, two of the inter-
venors at the hearing appealed the CRTC’s decision to the federal Cabinet. The Cabinet received
written submissions from some of the parties, but did not make these available to, or allow for
replies by, all of the others. Instead, it based its decision to turn down the appeal on evidence and
opinions provided by officials from the Department of Communications and the CRTC. For a sim-
ilar, more recent decision, see National Anti-Poverty Organization v. A.G. Canada, [1989] 1 FC.
208, 99 N.R. 181 (F.C.T.D.).
29lnuit Tapirisat, ibid. at 17-18. On the basis of this reasoning Justice Estey held that there was
no need for Cabinet to hold any kind of a hearing, to give reasons for its decision, or even to
acknowledge receipt of a petition. In short, in exercising its appeal power, Cabinet was under no
obligation to act fairly. For a case where a court refused to read a statutory power of direction as
tantamount to a Cabinet appeal power, see Reference re Public Utilities Review Commission Act
(1986), 52 Sask. R. 53. In that case the Saskatchewan Court of Appeal reasoned that the Legislature
expressly intended to “remove undue rate discrimination, potential political influence and activities
1990]
CHRONIQUE DE JURISPRUDENCE
The idea that Cabinet must be able to intervene rapidly in certain regulatory
areas to address new policy concerns is unconvincing as a justification for
Cabinet appeals. As the Law Reform Commission of Canada points out, in
many situations “it is known from the outset that a political solution will likely
be imposed. Going through the motions of a decision prior to Cabinet interven-
ing could be a costly and protracted exercise in futility”.30 Needless to say, this
is especially true from the perspective of individuals and groups claiming a
legitimate right to participate in the decision-making process.
A second variant of the political accountability rationale for Cabinet
appeals, based on the notion that Cabinet should bear ultimate responsibility to
Parliament and the public for decisions in certain sensitive policy areas, has also
been criticized.3 As the Economic Council of Canada argues, it is simplistic to
believe that a mere grant of decision-making power to a political body such as
the Cabinet automatically ensures political accountability. If political account-
ability means, as the Council suggests, “accountability to the public for achieve-
ment of public goals”,32 there must be some mechanism to ensure that Cabinet’s
decisions are consistent with the policy objectives established in the legislation
under which it derives its authority. Otherwise a legitimate concern may arise
that Cabinet is bending to the wishes of a particular interest group, or pursuing
some other partisan motive, in rendering its decisions on appeal.3
Whether one endorses them or not, it is clear that traditional justifications
for the Cabinet appeal power in no way detract from Cabinet’s obligation to act
in conformity with the Charter. Many policy-based criticisms of the Cabinet
appeal process are relevant to the question of its constitutional validity under
section seven. Critics, including the Law Reform Commission of Canada and
the Economic Council of Canada, point to a number of procedural defects in the
ordinary exercise of the Cabinet appeal power.3 There is, for instance, no
(Ottawa: Law Reform Commission of Canada, 1985) at 37.
on the part of lobbyists, by placing ratesetting in the hands of a commission, generally independent
of the executive branch of Government…”. Ibid. at 61.
30Law Reform Commission of Canada, Report on Independent Administrative Agencies
31See for instance M. Rankin, “The Cabinet and the Agencies: Toward Accountability in British
Columbia” (1985) 19 U.B.C. L. Rev. 25 at 40-42; Economic Council of Canada, Responsible
Regulation – An Interim Report (Ottawa: Supply and Services Canada, 1979) at 64.
32R. Schultz, F. Swedlove & K. Swinton, The Cabinet as a Regulatory Body: The Case of the
331bid. at 88.
34Any doubts with regard to Cabinet’s susceptibility to the Charter were laid to rest by the
Supreme Court in its decision in Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441, 12 Admin.
L.R. 16.
35See, for example, L. Vandervort, Political Control of Independent Administrative Agencies
(Ottawa: Law Reform Commission of Canada, 1979) at 60-70; Responsible Regulation, supra, note
31 at 63-64; Rankin, supra, note 31 at 43-45; D.S. Kaufman, “Cabinet Action and the CRTC: An
Examination of Section 23 of the Broadcasting Act” (1985) 26 C. de D. 841 at 859.
Foreign Investment Review Act (Ottawa: Economic Council of Canada, 1980) at 88.
McGILL LAW JOURNAL
[Vol. 35
requirement that parties to the proceedings from which an appeal arises receive
notice that a petition has been made to Cabinet. If other parties do learn that a
petition has been presented, there is no obligation on Cabinet or the petitioning
party to give them a copy. Interested parties who obtain a copy of the petition
may file a response, but no duty is imposed on the government officials respon-
sible for preparing recommendations to Cabinet to consult with other parties, or
to take their interventions into account. Similarly, there is no requirement that
comments and responses of one party be made available to others. Finally,
Cabinet is not obliged to read the written submissions of the various parties, or
to allow the parties to be heard, when it is making a final decision on the issue
in question. 6
The difficulties created by the Cabinet appeal power for individuals and
groups attempting to participate in the regulatory process can be expected to
generate feelings ranging from intense frustration to a sense of acute injustice.
After expending scarce resources to participate in lengthy public hearings, a
final decision may be made in secret by an ill-informed body not present at the
original hearing, which has no obligation to entertain the views of those who
will be most affected, and which may be motivated by extraneous or illegitimate
considerations which the parties, or some of them,37 have had no opportunity to
address. David Mullan summarizes the effect of the existing Cabinet appeal pro-
cedure as follows:
mhe disappointed parties will inevitably believe that earlier participatory rights
have been for naught. Instead, it will be believed that crass political considerations
have overridden the carefully reasoned position of the administrative tribunal, and
that hidden and more powerful lobbies have been at work in a way not permissible
before the administrative tribunal.33
36See C.C. Johnston, The Canadian Radio-Television and Telecommunications Commission
(Ottawa: Law Reform Commission of Canada, 1980) at 85.
37In a 1979 report on regulatory reform, the Economic Council of Canada stated in this regard
that: “It may fairly be argued that cabinet appeals benefit wealthy, well-organized and politically
vocal interests at the expense of possibly larger groups that do not have these characteristics”;
Responsible Regulation, supra, note 31 at 63.
31D.J. Mullan, “Administrative Tribunals: Their Evolution in Canada from 1945 to 1984” in I.
Bernier & A. Lajoie, eds, Regulations, Crown Corporations and Administrative Tribunals
(Toronto: University of Toronto Press, 1985) 155 at 175. Former CRTC President John Meisel’s
description of Cabinet appeals as “an invitation to vested interests and lobbyists to converge on
ministers in an effort to undo, behind closed doors, decisions reached by the Commission and
based on public hearings where interested parties can react to one another’s arguments openly.”
goes some way towards confirming suspicions about the process; see A.J. Roman, “Govemmental
Control of Tribunals: Appeals, Directives and Non-Statutory Mechanisms” (1985) 10 Queen’s L.J.
476 at 478.
1990]
CASE COMMENTS
M. The Constitutionality of the Outcome in Manicom
The manner in which the Cabinet appeal power under the Consolidated
Hearings Act was exercised in Manicom not only supports generalized critiques
of the process, but renders the decision it actually produced in the case uncon-
stitutional for a number of reasons. Life, liberty and security interests were
clearly at stake in the case.39 The decision to allow waste disposal to go ahead
on the proposed site posed a serious and direct threat to the plaintiffs’ physical
health through contamination of drinking water, garden fruit and vegetables and
food crops, as well as of potential contamination of livestock using affected
water. The plaintiffs’ physical security and the security of their children would
be jeopardized by the exponential increase in heavy traffic using local and vil-
lage roads. The waste disposal site also threatened the plaintiffs’ psychological
health. The health and security hazards created by the site would be a source of
anxiety, its visual prominence a constant reminder. The location of the site so
close to the heart of the plaintiffs’ village would also lead to more subtle forms
of stress, through deterioration of neighbourhood relations and the sense of
community which is important if not essential for human happiness, particu-
larly, it might be argued, in rural areas.4
Measured against a definition of fundamental justice which insists on a
right to participate in decisions affecting section seven interests, the Cabinet’s
decision to authorize the site fails on several counts. The plaintiffs, along with
other local residents and the Township, went to considerable trouble and
expense to participate in the proceedings of the Joint Board. Their participation
was necessarily premised on the view that the Board’s decision, derived after
lengthy hearings and well-informed deliberations in which they had an impor-
tant part, would be determinative. In fact, this did not prove to be the case. In
spite of the expectations generated by the formal hearing process, their partic-
ipation before the Joint Board was, in the end, rendered meaningless.
At the Cabinet appeal level, the plaintiffs, who were the parties most
affected by the procedings and the outcome, were denied meaningful access to
those with the actual power to decide, the members of provincial Cabinet. While
representatives of the County enjoyed ongoing interaction with individual min-
isters, and with relevant officials in the Ministry of the Environment, the plain-
tiffs were denied any opportunity for direct input. A major issue, the urgent need
for the site, was only addressed by the County and by Environment Ministry
officials, this after formal opportunities for participation no longer existed for
39See the cases cited supra, note 7.
4See, for example, P. Smith, “What Lies Within and Behind the Statistics? Trying to Measure
Women’s Contribution to Canadian Agriculture” in Growing Strong – Women in Agriculture
(Ottawa, Canadian Advisory Council on the Status of Women, 1987) 123 at 189-190.
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[Vol. 35
the other parties. The plaintiffs were also denied access to the information they
needed for meaningful and effective participation. In particular, the plaintiffs
did not have access to the Ministry of Environment report, which was produced
subsequent to the Joint Board hearing, and which formed the basis of the
Cabinet’s ultimate decision to authorize the site. The scientific premises of the
Ministry report, including the basis for the claim that the site could be engi-
neered in such a way to make it safe, could not be tested. The recommendations
in the report could therefore not be adequately addressed. This was particularly
serious for the plaintiffs, since the factual content of the report, as well as its rec-
ommendations and conclusions, were entirely inconsistent with the findings of
the Joint Board.41
IV. Cabinet Appeals and Fundamental Justice
The decision in the Manicom case highlights those aspects of the Cabinet
appeal power which render it most susceptible to constitutional challenge.
Cabinet’s decision in the case violated principles of fundamental justice because
it denied a meaningful right to participate to those most affected: the individuals
and families who would become neighbours of the waste disposal site, and who
would suffer the risk of physical and psychological harm as a consequence.
Cabinet’s decision in the Manicom case was the product of a decision-making
structure which preferred certain interests and excluded others. Given its incon-
sistency with the Joint Board’s findings, it is reasonable to suppose that it was
based on considerations extraneous to those which the parties were invited to
address during the hearings of the joint board, and to the overall purpose of the
environmental and planning legislation which created the decision-making
authority. In short, the decision appears to have been politically opportunistic.
That the residents of the village and the farms surrounding the disposal site rec-
ognized this, and viewed it as profoundly unjust, is evident from the substance
of the court challenges which they launched.
Some might suggest that outcomes such as the one in the Manicom case
are inevitable; that this form of decision-making, based on political trade-offs
instead of sound legislative policy, is an unavoidable feature of our present sys-
tem of Cabinet government; and that injuries suffered by the “losers” in this
process are an unavoidable cost. Whether or not this analysis is correct from a
policy perspective, it is clearly untenable in constitutional terms. Principles of
fundamental justice require that those threatened by government decisions in
relation to their lives, liberty, or personal security have a meaningful right to
participate in those decisions: a right to access to the actual decision-maker and
a right to the information which is necessary for effective input. As the
Manicom case illustrates, refusal to recognize such rights reflects disrespect for
41See supra, notes 16 and 19.
1990]
CHRONIQUE DE JURISPRUDENCE
the dignity of the citizen, and generates a sense of injustice which is fundamen-
tally incompatible with the specific guarantees provided by section seven, and
the general values which underlie the Charter:2
Many reform proposals have been made in relation to the Cabinet appeal
power. Some commentators have suggested procedural changes such as the
imposition of a duty to hear representations, to create a record, and to give rea-
sons, in order to bring the process in line with notions of procedural justice and
fairness.43 Others have viewed the appeal power as a form of “discretionary
accountability” contributing to “hypocrisy in government”,45 and have recom-
mended that it be abolished altogether.46 Whatever its susceptibility to reform,
however, the Cabinet appeal power as it currently exists is constitutionally sus-
pect in situations where section seven interests are involved. So long as its exer-
cise has the effect of denying access to the actual decision-maker, of undermin-
ing participation at prior stages of decision-making, or of creating a
fundamental sense of injustice in those whose section seven interests are at
stake, the Cabinet appeal power violates rights which the constitution now
guarantees.
Conclusion
In his decision in R. v. Oakes, Chief Justice Dickson referred to the dual
purpose for which the Charter was entrenched, that is, to ensure that Canadian
society is both free and democratic.’ As suggested at the outset of the paper, the
Charter should be read not only to protect rights, but to enhance democracy.
42The depth of feeling generated by a denial of such rights is illustrated by the response of Baie-
Comeau residents to the Quebec government’s decision, in August 1989, to store PCB-
contaminated waste from the St-Basile-le-Grand fire in their community without prior warning or
consultation. Following unsuccessful efforts to block unloading of the final shipment of PCB
wastes in Baie-Comeau, a spokesperson for the Manicouagan Environment Coalition voiced the
extreme frustration felt by local residents: “…we feel abused by the police, the government and the
justice system. We have done everything we can and we can’t get justice”. A. Picard, “Judge clears
second load of PCB waste”, The [Toronto] Globe and Mail (31 August 1989) Al at A2.
43See T.G. Kane, Consumers and the Regulators –
Intervention in the Federal Regulatory
Process (Montreal: Ihstitute for Research on Public Policy, 1980) at 74-75; Responsible
Regulation, supra, note 31 at 65; Independent Administrative Agencies, supra, note 30 at 38;
Vandervort, supra, note 35 at 69; W.A.W. Neilson, “Regulation and Public Participation: Recent
Versus Desirable Trends, in H.V. Kroeker, ed., Sovereign People or Sovereign Governments
(Montreal: Institute for Research on Public Policy, 1981) 121 at 133; Mullan, supra, note 38 at 176;
Rankin, supra, note 31 at 54-55.
Public Policy, 1979) at 126.
44D. Hartle, Public Policy Decision-Making and Regulation (Montreal: Institute for Research on
45Vandervort, supra, note 35 at 125.
46H.N. Janisch, “Policy Making in Regulation: Towards a New Definition of the Status of
Independent Regulatory Agencies in Canada (1979) 17 Osgoode Hall L.J. 46 at 105; Responsible
Regulation, supra, note 31 at 67; Rankin, supra, note 31 at 53-54.
47[1986] 1 S.C.R. 103 at 136, 26 D.L.R. (4th) 200.
McGILL LAW JOURNAL
[Vol. 35
This second aspect of the Charter is particularly relevant since democracy in
Canada can no longer be assured simply by an autonomous Parliament. As the
Manicom case illustrates, many of the public decisions which bear most heavily
on individual welfare are made by Parliamentary delegates, beyond the bounds
of Parliamentary control.48 If the Charter is to meet the complex demands of
modem Canadian society, it must be read for its capacity to enhance the ability
of all citizens to participate in government decision-making wherever it occurs.
This because it is participation, and not merely representation, which sustains
democracy.
4ISee supra, note 6.
