#9162 - Framework Of Administrative Law - Administrative Law

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...