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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
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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