#10746 - Summary.Adminfinalexam.2014 - Administrative Law

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 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.

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

   1. The more the process provided for, the function of the tribunal, the nature of the decision-making 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”

   1. 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

   1. 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

   1. 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...