Abuse Or Fettering Of Discretion Notes

Abuse Or Fettering Of Discretion

Overview

-definition of discretion: the power to choose bw outcomes

-historically, viewed as separate from law (Dicey), now view distinction as blurred (Nicholson; Baker)

-now deferential approach: recognizes that admin bodies need discretion to be efficient and operate within their realm of expertise

-but there are procedural, rule of law and democratic challenges (e.g. immigration, national security context, principal-agent analogy)

-dialogue bw admin DM and individual, and bw exec and DM as model to address rule of law and democratic challenges

Rationale

-Rule of Law (Roncarelli)

-Rand says discretion is never unlimited

-to recognize such power would be to undermine the rule of law, and the idea that everyone is bound by it

Framework

1. Assessing the scope of the legal grant of discretion: when is there a Grant of Discretion?

i) Types of discretion:

a. Discretion to Decide Individual Cases

-Baker: discretion to admit someone based on H+C, exempt certain reqmts, etc

-Roncarelli: discretion to cancel liquor licenses at discretion

b. Discretion to Adopt General Norms

-delegated authority to make rules, regulations, bylaws, tariffs, orders, soft law (guidelines) etc.

-e.g. Baker: guidelines

-authority is delegated> justified bc need for expertise and problem of time

-often raises issues of fettering

ii) Assessing legal scope of discretion:

a. “May or may not act” wording in a grant of authority

b. Use of vague or imprecise language in statute

-e.g. interpret by-laws for the good rule and governance of the city

c. Can be subjective (opinion) or objective:

-objective: “minister may appoint someone competent”

-subjective “minister may appoint someone who in the opinion of the minister is competent”

d. Grant of authority to make rules (Cabinet regs), decisions (Baker), or soft law (guidelines) > wide scope

2. Procedural fairness

a. Threshold: limits to application

-no CL right to PF (e.g. public consultation, notice) when a matter is general or legislative in nature (Inuit Taprisiat)

-assess if it effects a large number of ppl; if it is a decision of cabinet, etc.

-exception: unless clearly legislated (Thorne’s Hardware)

-e.g. notice/ opportunity to respond

-if legislated, the requirement will not be particularly onerous:

-Enbridge – only general notice and enough information to allow for meaningful response

b. Baker analysis:

1. Nature of the decision and the decision making process

-the more like a court it is, the higher the protection

-taking away entitlements requires more DPF than providing benefits

2. Nature of the statutory scheme and the terms under which the body operates

-no appeal or final, leads to higher protections

-Charkaoui II: nature of stat scheme can shift

3. Importance of the decision to the individual affected (nature of the interest)

-the more important it is to the individual, the higher the protection

-significance of s 7 rights (Suresh: deporting individuals alleged to be terrorists

to face torture)

-traditional CL rights can be important, e.g. property: Homex

-Kane: profession or employment at stake

-even if decision is an exception, discretionary or a privilege, can still be very

important to individual (Roncarelli; Baker)

4. Legitimate Expectations

-were there any representations made regarding participation or procedures, even if its not typically required?

-not a source of substantive rights, only procedural (Canada Assistance Plan; Mavi)

-if made by a govt official re procedure and doesn’t conflict w stat duty, proof of reliance is not required (Mavi)

-where there has been a substantive, clear, unambiguous, and unqualified

statement made by a public official, the procedural protection becomes

enhanced (Mt. Sinai)

-int’l law doesn’t give rise to legit expectation as a govt rep for H&C (Baker)

5. Procedure of the agency

-especially relevant where agency is conferred discretion to choose procedures

-Respect for the procedural choices of procedures made by the agency itself

-Significant weight placed on agency and institutional constraints

-flexibility and deference should be respected

-Reflects role of admin bodies in modern state: need for efficiency; govts in miniature

-however, non- determinative

-Factors are non-exhaustive (Mavi)

3. Substantive fairness

** NB: Law/discretion categorization blurred (Nicholson; Baker)

a) Threshold: limits to application

-cannot do a substantive JR of cabinet actions (e.g. order in council) bc don’t want to interfere w political process, unless case is egregious, jurisdictional (Thorne’s Hardware)

-however, cts do review rules made by other agents under JR powers similar to those used to review other decisions of executive

-e.g.: Enbridge: cts will review substance of regs and rules for whether the reg is w/in the grant of power

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