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Law Notes Administrative Law Notes

Abuse Or Fettering Of Discretion Notes

Updated Abuse Or Fettering Of Discretion Notes

Administrative Law Notes

Administrative Law

Approximately 52 pages

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Abuse Or Fettering Of Discretion


-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


-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


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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