Rule Of Law And Substantive Review Notes

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

Procedure

-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?

Approach

-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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