Judicial Review Of Administrative Action - Public Law

PART XI: JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

• The essence of this review is that we’re looking for accountability, constitutional protection, oversight, ensure fairness and preventing arbitrariness

• There is a whole spectrum of judicial review associated with executive action – there are cases where you want to intervene more because the matters deal with serious issues, whereas there are others where you might not want to do so

• Too much judicial involvement may take the way the finality of executive action

• Judicial review is about achieving efficiency and a balance in terms with executive action

• Judicial review should ensure that executive action is only doing what it is entitled to do by jurisdiction

Overview of Administrative Law

• 3 limits on exercise of executive powers

  • can only do what statute tells you to do (maintaining jurisdiction – ex. Ultra vires v inter vires)

  • must ensure appropriate procedural fairness; cannot exercise discretion arbitrarily

    • difficult to place along the scale of judicial review

  • in some cases, you cannot be wrong about your decision making power

In many cases where an administrative decision is made, you have the right to judicial review. This is the means by which the court overviews administrative powers.

An application is generally made and the court will decide whether or not to intervene (different from appeal because an appeal is a disagreement about what one level of court has decided)

THREE REASONS WHY JUDICIAL REVIEW IS DIFFEERENT THAN APPEAL

1. Right of appeal must be provided for by statute. Unless the law permits you to do so, there is no right to appeal

• Even by statute, you cannot derogate something to be reviewed by judicial review

2. Standard that court applies in decision varies between appeal and judicial review

• Courts are more exacting with appeals than judicial review

• With judicial review, the courts will tolerate some level of error

  • Typically you just have to show that the decision was reasonable

3. On appeal court has broad remedial powers (can substitute decision for decision of lower courts)

- in judicial review, the remedial decision is more narrow; can only say that something was wrong. Cannot substitute its own decision or invoke a remedy.

On Judicial Review you could argue:

1. tribunal exceeded its authority

2. process by which decision was made wasn’t fair

3. decision maker has committed an error of law or fact

• courts will typically look to a high standard of jurisdiction to see if the tribunal has exceeded its authority

  • ex. ONHC limitation period cannot bring a claim after a particular point in time (1 yr) – that limit has been considered a jurisdictional issue because if it’s filed after 1 year, the tribunal doesn’t have jurisdiction to interpret

  • must be right about jurisdiction; on review, the court can look to this

• procedural fairness is about the process – means to the ends (ex. Required to have an interview for a H and C application)

  • ex. ONHC – must give parties a hearing before anything is decided

  • ex. Baker – unless there is a statutory obligation to have submissions, it’s tough to argue that there ought to be submissions prior to a decision being made

  • could be a breach of statutory obligation and procedural fairness

  • this type of fairness also encompasses impartiality, but with the judiciary there needs to be independence

    • right to have the decision made by the person who heard the case

    • ex. Reason why administrators cannot talk about their decisions with the public because it may appear that they’re opening it up to deliberation

  • it may also include the right to a fair hearing

• error: court may tolerate depending on jurisdiction

  • there are several types of errors that you can make: errors of fact, errors of law (ex. Tribunal has misinterpreted the law), error of mixed fact and law (could be a hybrid of the two)

  • court looks to several factors on tolerating errors:

    • was the error more about facts or law? The more it has to do with a factual error, the more deference the review will give to the initial administrator

    • two standards applicable to an error of fact: can question whether...