Administrative and Regulatory Case Review

  • November 20, 2017
  • Stockwoods LLP

Tribunals are not constrained by stare decisis

In Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), the Supreme Court of Canada held that, unlike courts, tribunals are not constrained by the principle of stare decisis (para. 14).  In Ontario Medical Assn v Ontario (Information and Privacy Commissioner), 2017 ONSC 4090 (Div Ct), the Divisional Court confirmed that an administrative decision maker could depart from the tribunal’s prior jurisprudence as long as the decision under review contains reasons for such departure.  The Court also rejected the argument that the perceived bias on the part of the commissioner of the administrative body would be attached to the tribunal’s adjudicator who hears the matter.

Inadequate reasons attract less deference

The majority of the Supreme Court in Congrégations des témoins de Jéhovah v Lafontaine [2004] 2 SCR 650 held that an administrative decision maker may owe a duty to give reasons, depending on the circumstances.  Legitimate expectation based on past practice is a relevant factor to determine the content of such duty (para. 10).  Where no or inadequate reasons are contained in an administrative decision and there is no record showing that the decision maker's expertise was engaged in the decision making, less deference is granted to the decision upon judicial review (para. 11).  Recently, in Canada (Minister of Transport) v. Canadian Union of Public Employees, 2017 FCA 164, the Federal Court of Appeal set aside the inspector’s administrative decision that did not contain adequate reasons and did not appear to be supported by the underlying evidentiary record.


For detailed case summaries of the recent decisions discussed above (and others), please refer to Stockwoods LLP Administrative & Regulatory Law Case Review, a bi-monthly newsletter discussing some of the latest and most important administrative law cases.  To receive the newsletter, just email  

[0] Comments