Framework Of Administrative Law Notes

Basic Framework of Administrative Law

1. What is the authority to make the decision, and did the delegated authority make the right decision?

2. Does this decision comply with the rules of Natural Justice and Procedural Fairness?

   1. Is the plaintiff entitled the right to an oral hearing?

      1. Threshold question:

         1. Is this the sort of decision that attracts the right to be heard?

         2. What was the content of this right?

   2. The rule against bias

      1. impartiality and independence in decision-making process

3. Does the impugned decision comport with substantive requirements of the law?

   1. Rule of Law

   2. Substantive JR: deferential, pragmatic and functional approach

   3. Is there an abuse of discretion?

4. What is an appropriate remedy?

Duty of Procedural Fairness

Overview

-duty of fairness key development of admin law: individuals treated w respect in admin procedures, leads to better outcomes in terms of policy and more informed decisions

-is context specific (Baker) > thus normative

-includes some but not all aspects of natural justice

-right to fair process, participation, respect, but no guarantee re fair outcome

-CL concept, but has a constitutional dimension (Charkaoui)

-s 7: subsumes PF under PFJs but doesn’t constutionalize PF per se

-s 7 only applies where there is a deprivation of a PFJ> est a higher threshold than simply est that right or interest is affected

- if breached, likely not justified under s 1 unless exceptional

-also is modified by statute: must be explicit to be abrogated (Kane)

-usually arises when statute is silent

-is implied to exist even w/omission of reference to its protection (Cooper)

-remedy for breach relates to procedural nature: decision is quashed and it is remitted back to be redecided

Rationale/ Policy Outcomes of DPF

-promotes sound public admin

-protects dignity of individuals and fosters civic and legal participation

-upholds rule of law by protecting against arbitrary power

Components

i) right to be heard (audi alteram partem)

-not necessarily an oral hearing (too inefficient), but may be required if process resembles or involves judicial system

-includes timely notice

ii) right to an independent and impartial hearing and decision maker (nemo judex in causa

propria sua debit esse)

-free from bias

Framework

1. Application

-PF DPF applies to all public admin bodies making a decision that affects an individual’s rights, interests or privileges (Nicholson; Baker)

a) Threshold: does DPF apply?

1) only applies where decisions are made: likely not at the preliminary stage of a decision

unless the prelim decision has de facto finality

2) doesn’t apply to legislative or general decisions: (Inuit)

-these are insulated from all JR as cts are created by legislatures (Wells)

-seen to be political- no right to prevail in political process

-once legislative process is complete> insulated (Authorson)

-comment: this distinction is problematic: hard to distinguish, can result in all or nothing outcomes (if deemed legislative, totally insulated from protection)

-may apply to cabinet and ministerial decisions:

-decisions involving particular individuals most likely to be covered under the duty, while if it affects many ppl, likely no DPF

-Inuit: held no duty bc CRTC decision covered wide range of ppl

-Idziak: extradition> applied to 1 person, but ct still reluctant to impose procedural protections

-Cdn Immigration Consultants: no DPF although aimed at one body bc legislative

3) DPF doesn’t apply to subordinate legislation (e.g. rules, regs, etc):

-no CL duty to give notice or opportunity to be heard when making rules

-requirements that do exist are often est by legislation (Enbridge) CHECK STATUTE

-not all Cabinet decisions are necessarily legislative and outside threshold (Roncarelli)

-exceptions where ct has imposed DPF:

-Homex: passage of municipal bylaw subject to DPF bc it was passed in motivation subject to limit one individual’s rights (the developer); could not use bylaws to circumvent DPF; bylaw classified as not legislative but ‘quasi judicial’

4) policy decisions are not subject to DPF:

-for same reasons as legislative > seen to be political

-Imperial Oil: Que discretionarily decided to make D decontaminate site> held to be a policy decision, which govts must have flexibility to do so

-Martineau: no DPF

-Knight: function test:

-bc many admin bodies are performing policy functions of legislatures, need to distinguish bw admin functions and legislative/general functions performed by agencies

-same problems as legislative decisions: often hard to identify, leads to inconsistency as it gives cts a means to not interfere

5) it is a public duty only (Dunsmuir):

-existence of private contract of Em removes the public quality of the decision, and thus no entitlement to PF (Dunsmuir – civ serv at pleasure)

-doesn’t apply to public office holders employed under Ks

-no distinction bw public office holders and other Es in dismissal cases

-all will be held to rights/standards under E law/private law K principles> assumed to cover PF issues

-exceptions:

i) Es not under Ks or subject to employment at pleasure;

ii) if implied by statute

6) duty may be suspended or abridged in the event of an emergency:

-can be suspended when meeting the duty would bring risks or harm

-Cardinal: isolation of prisoners in emergency situations, put in place when over (hostage context)

-applies in national security context

2. Assess Enabling Statute

-are there procedures specified in the enabling statute?> if yes, use them

-if not, proceed to see if SPPA applies

3. Apply SPPA: (prov tribunal)

-a) limitations> SPPA does not apply to:

- 3(2): Act does not apply to legislature, courts, any tribunal empowered to make rules, regs or bylaws, Arbitration Act, Labour Relations Act, any proceeding to which civ pro rules apply, coroner’s inquests, public inquiries, investigations w reports that have non legally binding recommendations

-does not apply if conflicting Acts: other Act prevails if SPPA provisions conflict

(s. 21.2(3))

> if does not apply, go to Knight test

-b) SPPA s. 3: “Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision”

-to apply, must be a “decision” being made to decide on benefits, licenses, etc

-more than mere recommendation

i) SPPA imports CL (“otherwise by law”):

-the SPPA applies where CL would require a hearing

-the SPPA imports the CL where the statute is silent

-as CL application of DPF is broad, assessing DPF is thus a matter of scope> this process is contextual, but fairness is a floor reqmt (Baker; Nicholson)

-context is based on: circumstances of case, statute, rights effected, social context

> imports Baker factors:

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)

* NB: SPPA prevails over CL in times of conflict, and is trumped by CH

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

-tribunals can create their own procedures (s 25.1), but in the event in conflict

SPPA trumps unless there is express delegation by enabling or constituent

Statute (s. 32)

-are there resource-saving procedures in place?

-does the statute grant delegated body to set procedures for itself?

-does the agency have specialized expertise in determining what procedures

are appropriate in the circumstances?

-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

-iii) Appeal to court: provides for the appeal of an order from a tribunal to a court

-if do this, the order from the tribunal is stayed

- seeking JR will not stay the order of the first level of tribunal (s. 25)

3. Content of CL Duty of Fairness

**NB: as no fed equivalent of SPPA, very important for fed tribunal

-as application of DPF is broad, assessing DPF is thus a matter of scope> this process is contextual, but fairness is a floor reqmt (Baker; Nicholson)

-context is based on: circumstances of case, statute, rights effected, social context

a) Baker factors:

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)

4. Charter Requirements of DPF

-a) Threshold: Applies when “life, liberty or security of the person” are impaired (s. 7)

-*NB: only directly invoke these if trying to challenge a specific statutory provision> if not, you get the same result re scope of PF under CL

-applies in narrower contexts than CL DPF but is more expansive pfjs encompass CL DPF, but the CL DPF is not constitutionalized (Singh)

> everyone “physically present in Canada and by virtue of such presence amenable to Canadian law” is entitled to s. 7 right (Singh)

-examples of s 7 values engaged:

• Where it involves action overseas, there must be a causal connection to the Cdn govt (Suresh):

  • Refoulement or prolonged/indefinite detention (Charkaoui)

• Serious state-imposed interference with psychological integrity (G(J): welfare authorities seized child)

• Deportation to face persecution (Singh) or significant risk of torture (Suresh)

• Delay caused by ODSP eligibility process such that it caused extreme hardship (Wareham)

-examples where s 7 not engaged:

• Reputational or psychological stress does not qualify unless it is extreme (Blencoe)

• Delay from an admin proceeding does not qualify unless it is extreme (Blencoe)

• Extended detention scheme if accompanied w regular review (Charkaoui)

-b) Content of CH DPF

• Where statutory scheme infringes the CH DPF, a ct may use the CH may strike statute and impose requirements (Suresh> use Baker factors)

• PFJs are flexible in their content, s 7 does not require a particular type of process but a fair process having regard to the nature of the proceedings and the interests at stake (Charkaoui)

  • CL informs content of duty once threshold is crossed: the greater the interests at stake, the greater the procedural protections (Suresh)

  • Encompasses the right to a fair hearing, specifically (Charkaoui):

    • An independent adjudicator

    • Right to know the case against you

    • The right to answer that case

  • Oral hearing is required where credibility is at issue (Singh)

  • Requires reasons (Suresh)

  • Encompasses disclosure, but not required if the material is a legal opinion or can be limited if the materials are sensitive for matters of national security

(Pritchard; Suresh; Charkaoui II)

• Limitations:

  • Doesn’t require state funded counsel (Christie)

  • weighing of stat objectives and individual’s rights should occur in s 1 only (Malmo Levine; Charkaoui)

c) s 1

• Security concerns shouldn’t be used to justify s 7 violations (Charkaoui)

• Courts very reluctant to uphold s. 7 violations under s. 1: that which violates pfjs very unlikely to survive Oakes test (G)(J))

  • Not minimally impairing if they are alternate approaches that would better balance stat objectives and individual’s rights (Charkaoui)

• Examples where violation not justified under s 1:

  • Singh: IRPA scheme which denied right to oral hearing where credibility at stake

  • Suresh: exercise of discretion (as opposed to legislation itself that provides discretion) resulting in sending refugees to face torture as the Minister failed to provide adequate safeguards and reasons

  • Charkaoui: security certificate scheme violates bc in camera, ex parte hearings violates right to a fair hearing as individual doesn’t get to respond to case

d) CH Remedies

• If tribunal:

-can only be considered by admin bodies that can consider ? of law (Martin)

a) Is the administrative tribunal a court of competent jurisdiction?

> yes, if:

- (i) authorized to decide ?s of law:

-presumption: tribunals have authority to determine questions of law (must be rebutted)

-rationale: want to make CH accessible w/o requiring parallel proceedings in the cts

-usually, there is an explicit grant of authority in the statute

-if not, assess if there is implicit authorization to determine Qs of law?:

1. Guiding ? is legislative intent: but this inquiry doesn’t depend upon if govt intended for tribunal to apply the CH

2. Instead assess if empowering legislation grants the tribunal jurisdiction to assess ?s of law

Consider statute as a whole: necessary to fulfill

mandate of tribunal?

-1^st level or appellate level?

-Interaction of tribunal w other parts of admin system

-comprehensive scheme replacing another area of law (like workers’ comp replaces tort)?

-Practical considerations such as efficiency (although are not determinative)

-These characteristics usually rest w adjudicative body but need not be determinative

-ii) can be rebutted through:

-explicit or implicit statutory provision saying do not have authority

-rely on statute itself, not external factors

-onus rests on party asserting tribunal lacks jurisdiction

b) If so, then a remedy can be granted but:

- s. 52: tribunal remedy is to simply not apply the provision: suspend provision but cannot make declaration of invalidity (not binding precedent)

• tribunal can apply a s 24 remedy if it meets the Conway test

1. Must meet test from Martin, as above, to see if it is a court of competent jurisdiction, plus

2. it cannot been excluded from Charter jurisdiction by statute

3. if yes to a) and b), the tribunal is a ct of competent jurisdiction as per s 24

4. Assess if the tribunal have the statutory authority to grant the particular remedy at issue?

-yes, if the scope and nature of the tribunal’s statutory mandate

and functions provide authority to grant a particular remedy

-look to legislative intent

5. if yes...

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