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Abuse Or Fettering Of Discretion Notes

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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

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