Summary.Adminfinalexam.2014 Notes

CHAPTER 1: WHAT IS ADMIN LAW?

• Legal system’s way of confining the law in a rational and comprehensible way through regulation of government power and implementation of public programs (esp. at point of delivery)

• AL tries to create civility between public officials and the subjects of legislation

• Response to the continuing desire and fear among the citizenry

• Holds the executive (para-public entities) accountable – tries to make it more transparent by extending the rule of law and democracy into a bureaucracy

• Deals with agencies, boards and commissions (ABCs)

  • ABCs are advantageous because of expedience, costs, specialization, easy creation, high caseload, freedom from political pressures

  • With ABCs, the task is to get at the job under the mandate and be efficient

  • Legislatures creates these ABCs which must abide by rule of law

• Institutions of the administrative states: legislature, crown corporations, cabinet, municipalities, private bodies, ABCs

Q: How does the bureaucracy (ABCs) relate to courts?

1. Justify actions by link to constitution in which law applies equally and everywhere

2. Ensure that the rule of law (ROL) is obeyed

3. Conditions of judicial approval of ABC decisions include:

   1. accountability (perceived as rational, fair)

   2. rationality – reasons given and decision justifiable

   3. justifiable: transparency, reasons, fair procedure, participation

4. There is a degree of autonomy with the ABCs in the interest of fast, cheap responses

   1. The degree of autonomy informs the fear-desire calculus which deals with the ABCs having so much power and the courts ensuring that the system remains accountable)

   2. Dunsmuir has tried to reconcile this tension by noting that Cts have the final say on jurisdictional limits (para 30), judicial review of statutory powers is guaranteed and cannot be legislated away (31)

Q: How are ABCs accountable to Cts?

• Original Jurisdiction: Cts have jurisdiction over ABC decisions as makers of private law

  • Where there is no mechanism of appeal, you can still take the claim to court. Ex. 1995 in-coming Lib government cancelled Tory plan to renovate Pearson airport’; decision challenged as breach of K.

  • Cts can intervene where there is no right of appeal if there are issues with procedural fairness, illegality, unreasonableness, constitutionality

  • FC has exclusive jurisdiction over federal admin agencies; SC has supervisory jurisdiction

• Appellate Jurisdiction: exists only by statute. There is no original jurisdiction for appeal (it requires leave of the Ct). The appeal is a question of law and no facts can be in dispute (narrow appeal)

• Judicial Review Jurisdiction: Cts have jurisdiction to review ABC decisions. This is constitutionally entrenched under s. 96 of CA (Crevier v QC 1981 SCC). This is intimately connected with the ROL because all exercises of public authority must have a basis in law, public officials have legal limits, and Cts role is to supervise and ensure those limits are not exceeded. Ct does not substitute its own decision for that of the delegate.

  • JR to Federal Court (see Federal Courts Act)

  • JR Provincial: Ontario Judicial Review Procedure Act

  • Professor Dicey in the UK noted that all citizens must be held accountable for a distinct breach in the law; introduced the ROL principle to AL. Dicey argues there is no separate public law applying outside ordinary courts.

Q: Can ABCs act ultra vires?

Case law: See Cooper

=> Yes

• ABCs must act within their statutory confinements. Cts interpret the legislation to determine whether the decision makers are unbiased, to keep power confined within the proper purposes, and ensure power is used fairly and transparently

ORDERS ISSUED BY THE COURTS RE: ABCs

Prerogative writ: judicial review jurisdiction applied through this. Royal power to require public official to come before Ct of QB to justify decisions (codified in ON).

Certiori: writ to quash ABC decision

Prohibition: order tribunal not to proceed in a matter

• Note that certiori and prohibition are contingent on presence of judicial or quasi judicial function (Ridge v Baldwin 1964 Eng HL)

Mandamus: order performance of a public duty

Quo Warranto: authority must justify entitlement to hold public statutory office against claim that a person is a usurper

Q: What makes a power ‘quasi-judicial? (QJ)’? (RHR)

• Legal authority to affect rights

• Legal duty to hold hearings

• Adjudication by rules, not policy

Q: What are the implications of a QJ decision?

• Decision makers must observe natural justice before making a decision

• Formal notice of a possible action is required

• Trial type opportunity to challenge and comment

• Violation of technical requirements of a QJ power

CHAPTER 2: PROCEDURAL FAIRNESS

Cases: Martineau, Cardinal, Cooper, Nicholson, Baker, Mavi, Suresh

PART I – PROCEDURAL FAIRNESS PRINCIPLES

Martineau v Matsqui Inmate Disciplinary Board – Duty to act fairly exists even if decision maker doesn’t have duty to act judicially.

Cardinal v Director Kent Institution 1985 SCC: duty of procedural fairness lies with every public authority making a decision affecting rights, privileges or interests of person.

Cooper v Bd of Works 1863 ENG (Functional approach to procedural fairness – PF not just public-law based)

F: s. 76 of Act requires 7 days notice be given to board of workers before house is built, otherwise it is demolished. C sends notice and builds 5 days after. Bd claims no notice given – house demolished. C argues demolition and act of seeking costs...

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