ADMINISTRATIVE LAW SUMMARY - 2014 WINTER

1 CHAPTER 1: WHAT IS ADMIN LAW?
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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) o ABCs are advantageous because of expedience, costs, specialization, easy creation, high caseload, freedom from political pressures o With ABCs, the task is to get at the job under the mandate and be efficient o Legislatures creates these ABCs which must abide by rule of law Institutions of the administrative states: legislature, crown corporations, cabinet, municipalities, private bodies, ABCs

COURTS o Truth seeking, fairness, time consuming o Generalist bodies applying law o Resolve via adversarial system o Procedures are generally the same from ct to ct o Caseload finite/limited

AGENCIES o Completing mandate o Fact-finding but also forward looking o Use specialized personnel o Statutory powers and distribute benefits o Infinite caseload o Variable procedures - often responsive to constituency

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: a. accountability (perceived as rational, fair) b. rationality - reasons given and decision justifiable c. justifiable: transparency, reasons, fair procedure, participation 4) There is a degree of autonomy with the ABCs in the interest of fast, cheap responses a. 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) b. 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?
o Original Jurisdiction: Cts have jurisdiction over ABC decisions as makers of private law o Where there is no mechanism of appeal, you can still take the claim to court. Ex. 1995 incoming Lib government cancelled Tory plan to renovate Pearson airport'; decision challenged as breach of K. o Cts can intervene where there is no right of appeal if there are issues with procedural fairness, illegality, unreasonableness, constitutionality o FC has exclusive jurisdiction over federal admin agencies; SC has supervisory jurisdiction

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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. o JR to Federal Court (see Federal Courts Act) o JR Provincial: Ontario Judicial Review Procedure Act o 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 o 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 o 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) o Legal authority to affect rights o Legal duty to hold hearings o Adjudication by rules, not policy Q: What are the implications of a QJ decision?
o Decision makers must observe natural justice before making a decision o Formal notice of a possible action is required o Trial type opportunity to challenge and comment o Violation of technical requirements of a QJ power

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3 CHAPTER 2: PROCEDURAL FAIRNESS Cases: Martineau, Cardinal, Cooper, Nicholson, Baker, Mavi, Suresh PART I - PROCEDURAL FAIRNESS PRINCIPLES FRAMEWORK: 1) Assess the statute to see what the legislative intent is 2) Go to 5 Baker factors

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 publiclaw 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 from owner is ultra vires (beyond bounds of statute). Notice and comment not authorized expressly by statute. Ratio: Even if statute does not expressly indicate that notice and comment is required, procedural fairness may be expanded to apply to statute. Reasons: CL supplies here for omission of the legislature. Leg never intended to confer power to deprive of property without notice. NOTE: the Ct is filling in the gaps here because the statutory provisions are not express Nicholson v Haldimand 1979 SCC (Implications of QJ decisions) F: N constable hired by K and appointed under Police Act. Act says no constable shall be dispensed of before 18 months of service and no penalties shall apply without hearing. N fired at 15 months. Ratio: Principles of natural justice run through quasi-judicial administrative settings. There is a general duty of fairness in administrative sectors. Reasons: notice and comment should have been given here. N should have been given opportunity to respond orally or in writing. Although there is a hybrid K law/public law matter here, this is not a breach of K, but rather a breach of procedural fairness. This scheme creates an undesirable master-servant relationship.

3 NOTE: The distinction between Nicholson and Cooper is that in Nicholson, the statute does not provide for procedural fairness before a certain amount of time. After Nicholson, certiori remedy became very broad through Martineau; applied to anything Baker v Canada 1999 SCC (helps resolve questions from Nicholson re: threshold for notice and comment; looks to LEG intent) F: live in caregiver overstayed in CDA. Applied for PR under H&C grounds. Had 4 children in Jamaica and 4 in CDA. Diagnosed with severe paranoid schizophrenia and on welfare. App denied without reasons and removal order issued. Officer's notes indicate she is a strain on the system and should be removed. S. 114 IRPA authorizes H&Cs as discretionary to Minister involving a written decision; no oral hearing. She sought a notice and oral interview. I: Were principles of procedural fairness violated? Was there a RAB?
D: yes; appeal allowed Ratio: Where rights, privileges or interests of the individual are engaged, duty of fairness is triggered. Duty of fairness includes the following factors:

1. Nature of the decision being made and the process followed in making it a. The more the process provided for, the function of the tribunal, the nature of the decisionmaking body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness

2. Nature of the statutory scheme and the "terms of the statute pursuant to which the body operates" a. Example, greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted

3. Importance of the decision to the individual(s) affected a. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated

4. Legitimate expectations of the person challenging the decision a. This doctrine is part of the doctrine of fairness or natural justice, and does not create substantive rights. It takes into account that it will be generally unfair for decision-makers to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights

5. Take into account and respect the choices of procedure made by the agency itself a. Particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances Reasons: There must be a meaningful opportunity to present evidence in an H&C application. An oral hearing is not necessary here (she responded in writing). In some cases, the duty of fairness requires written explanations for decision. The test for a RAB is whether an informed person viewing the matter realistically and practically would conclude a RAB. Deference should be given where the statute confers broad discretion. The Convention on the Rights of the Child should inform the contextual approach to judicial review.

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5 This case is considered within its statutory institutional context - what does IRPA and the manual required to make decisions require the officer to do?
The 5 Baker factors are like condition precedents to the implementation of the statutes Para 42 "Baker" on the nature of the decision: AL decisions require a fair and open procedure that is appropriate to the decision being made and provides for an opportunity for participation by those affected to present their evidence

Canada v Mavi (procedural fairness - looks to intention of LEG) F: family sponsorship involving multiple family members. Upon arrival to CDA, they apply for social assistance and government seeks reimbursement from sponsors. H: Baker factors are a roadmap, not a substitute for procedural fairness Reasons: Nature of the decision is final and specific - could result in filing a ministerial certificate with the FC which is enforceable as a judgment. Absence of remedies for the person militates in favour of duty of fairness at time of enforcement of decision. Gov req'd to give notice to sponsor re: claim. Suresh v Canada 2002 SCC F: security certificate. Did not have copies of reasons for deportation after certificate was issued. Made no oral or written submissions. Ratio: With deportation, s. 7 does not require full oral hearing or complete judicial process. Procedural fairness requires that the individual be able to meet the case, and materials should be provided to individuals. Decision of minister must be written if a prima facie case for torture made out by applicant. Reasons: MCI doesn't indicate why he would not be subjected to a risk of torture. Procedure here is highly discretionary and limited in appeal structure given legislative intent (Baker 2). The nature of the decision is serious, evaluated based on risk, and deals with balancing and weighing risks (Baker 1). The decision is important to Suresh in terms of risk of torture; there are economic, financial and emotional implications (Baker 3). The LE is that he can know the case and be able to meet it (Baker 4). Must be given basis of case against him which means materials must be provided (Baker 5). NOTE: o The CT used right to procedural safeguards in the CAT for requiring substantial grounds for believing person would be in danger of subjection to torture

5 PART II: HOLDERS OF PUBLIC OFFICE Knight v Indianhead (HYBRID RELATIONSHIP: Duty of fairness applies in public law unless public service K specifies otherwise) F: director of education of Indian Head school board. Position set out in Education Act. Had K w/Bd, was fired. Brought certiori to set aside firing. He argued he had a K relationship that was authorized by statute (hybrid like Nicholson), he sought notice and comment procedures before decision taken. H: certiori granted Reasons: notice and comment is required to some extent because even public office holders have a right to procedural fairness. Nonetheless, K was notified of the firing and made representations in this respect. Dunsmuir v New Brunswick 2008 SCC (HYBRID RELATIONSHIP - LIKE NICHOLSON AND KNIGHT; reversal of Knight) F: DOJ employee contracted, not unionized (hybrid K/statute position). Reprimanded 3 times with warning for dismissal or further action. Terminated by letter without reason under s. 20 of NB Civil Service Act. Given 4 months pay in lieu of notice. Grievance filed - adjudicator reinstated him. Ratio: PF must look to the nature of the relationship. Dismissal disputes must be resolved according to express or implied terms of K of employment, statutes and regs. Dismissal under a K shouldn't be subject to duty of fairness. Where one is protected by K, K law should provide remedy. Exceptions: 1) Where X not protected by K (judges or crown) 2) Duty of fairness flows by necessary implication from statute governing relationship Reasons: Judicial review ensures legality, reasonableness and fairness of administrative process. It upholds ROL and leg supremacy. Dismissal with notice is not unfair per se. NOTE: o Dunsmuir demonstrates a narrow application of procedural fairness (this is mentioned in Mavi at para 51) o After this case, we are left with the Q as to how far the exclusion of public law concepts with hybrid relationships go

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7 CHAPTER 3: CABINET DECISIONS AND APPEALS, BY-LAWS, RULE MAKING, POLICY MAKING PART I: CABINET Cases: Inuit Tapirisat, FAI Insurance Canada v Inuit Tapirisat of Canada 1980 SCC (Cabinet decision - Baker 2) F: Inuit oppose hydro rate increase suggested by Bell and approved by CRTC. CRTC had power to regulate rates of utilities under s. 64 of the National Transportation Act. Inuit and Bell makes written submissions to GIC, CRTC submits to department, dep't makes recs to Min, and Min is present at cabinet meeting. Inuit appeals based on statutory authority claiming rec from dept not given to them and therefore lack of PF. I: Is there a duty to observe natural justice on part of Cabinet?
D: no; appeal dismissed Ratio: We must look to the statutory scheme as a whole to see if the legislator intended for procedural fairness. Courts must look to see whether GIC performed duties within boundaries of statute. Reasons: Mere fact that statutory power is vested with GIC doesn't mean it's beyond review. Wording by parl shows that cabinet can fix rates at any time. No need for reasons for decision, or a hearing. NOTES o Cabinet may be subject to certain implied procedural obligations (Desjardins v Bouchard 1983 FCA) o Terms of statute in this case are key: GIC has the discretion to vary rates. Because cabinet is delegated authority by statute, PF doesn't apply o Ct doesn't want to fetter with process such that it becomes a judicial appeal FAI Insurances v Winneke 1982 Aust Ct (procedural fairness to corporations) F: insurance providing workers compensation; statute requires approval of the GIC to ensure that the insurer is 'fit and proper' person for compensation. Gov eventually has problems with FAI and provides them with warning that some of approval criteria are not being met and limits approval from 1 yr to 6 mo. Min rejects FAI's approval, FAI asks for notice and opportunity to be heard which is rejected by Min. H: It is proper that GIC acts in conformity with principles of natural justice by giving to the applicant an adequate opportunity to present its case.

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