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Law Notes Administrative Law Notes

Rule Of Law And Substantive Review Notes

Updated Rule Of Law And Substantive Review Notes

Administrative Law Notes

Administrative Law

Approximately 52 pages

Excellent administrative law notes....

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Rule of Law

Three Features

-a) legal principle in judicial analysis

-e.g. an unwritten constitutional principle (Que Secession; Roncarelli)

-b) institutional practice that impose legal restraints on public power:

-about cts upholding the rule while being sensitive to not unduly interfering w powers delegated to admin bodies by parliament (Dunsmuir)

-all exercises of public authority must have a source in CL> thus JR seeks to ensure this

-inherent role of SCs in reviewing (Binnie: Dunsmuir)

-conception of autonomy of law and politics

-rule of law gives legitimacy to political realm (Que Secession)

-prevents arbitrariness – can occur via jurisdiction, substance (done w bias, lack of care) or procedurally (powers outside of statute) (Roncarelli)

-e.g. Insite: found Ministers decision to deny license was arbitrary, didn’t further stat objectives

-c) political morality shared by Cdn polity (MA Language Reference)

New Minimalist Approach to the Rule of Law (Charkaoui, Imperial Tobacco and Christie)

-narrowed scope and effect of rule of law:

-doesn’t possess ability to strike down legislation based on its content

-written constitution is paramount (Imperial)

-now encompasses four principles:

-i) supreme over private and govt individuals’ exercise of power

-ii) requires creation and maintenance of a positive order of laws

-iv) requires that the relationship bw state and individual be regulated by law

-v) linked to principle of judicial independence

Substantive Review


-once a higher court determines the correct standard of review, they will apply this standard directly to the tribunal decision, without being constrained by the decisions of the lower courts

-pragmatic and functional approach applies to all forms of review, including stat appeals (Pushpanathan)

Grounds of Review

-NB: different from standard of review

i) Procedural Impropriety

-breach of DPF

-breach of rule against bias

-lack of required independence

-improperly authorized decision maker

ii) Substantive illegality

-a) Errors of Law:

-misinterpretation of the law applicable to the resolution of the case

-b) Errors of Fact:

-“perverse or capricious” findings (FCA), findings in absence of evidence

-c) Abuse of discretion:

-excess beyond what is granted in statute

iii) Unconstitutional exercises of power

-regardless of statute, must come before court

Framework: Is JR Is Available?


-although discretionary, cts positioned as protectors of rule of law (Khosa; Dunsmuir)

i) Threshold: Is The Tribunal or Agency a Public Body?

-does it exercise a degree of public function?

-does it have a connection to public...

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