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Administrative law 1. SETTING THE STAGE a. SF: Ch. intro admin law i.

. Sources of power for courts to review: 1. Original jurisdiction: ordinary courts have jdx over decisions of administrative decision-makers when they are challenged by way of direct actions by a citizen in contract or tort on ground that the state has infringed and individuals private legal right. 2. Statutory right of appeal: must be in statute. Look at statute establishing administrative agency and see if there is a right of appeal and on what grounds. 3. Courts inherent judicial review jurisdiction: superior courts in each province may review decisions made by institutions and officials with responsibility for administering public programs through the courts inherent judicial review jdx. Inherent means = jdx of superior court is broader than whatever conferred by statute. Can hear anything unless another statute makes the jdx of matter exclusive to another court or tribunal. ii. Prerogative writs were historically used to ensure that administrative bodies did not exceed legal powers and encroach on powers or matters of govt 1. Moved onto questions of law (rights and interests of affected party) and questions of fact (review decisions of those charged with making statutory power of decision on basis of evidence presented on which they could take official notice) to review iii. Section 96 and courts constitutional right to review administrative decisions 1. Sect 96 superior courts are immune from judicial review because they do not have jdx to judicially review other superior courts they can review inferior administrative tribunals 2. Provinces do not have jdx to create S. 96 courts, but have given administrative tribunals same immunity from judicial review that S.96 courts have. These are de facto S. 96 courts. 3 part test by real superior courts to determine if acting like S 96 court (unconstitutional b/c province has no jdx). i. Historical inquiry: is the admin decision in question similar to that one that at time of Confederation would have ben exclusively w/n power of superior, district, or county court to make? ii. Judicial versus legislative or administrative power: is the impugned power a judicial power as opposed to a legislative or administrative power? (judicial one is where private dispute between parties, adjudicated through application of bodies of rule, consistent with fairness, impartiality) iii. Contemporary character: (even if historically decision making power was under superior court) has the decision making in contemporary institutional setting sufficiently changed its character such that it cannot conform to the jdx of the court. 3. Crevier: to give provincial tribunal unlimited jdx to interpret and apply law and then preclude any supervision by provincial superior court (all decisions final) crated de fact S. 96 court. (ignore provincial legislatures private clauses excluding judicial review of admin tribunals attempt to create de fact S 96 court) iv. Administrative Law process 1. Procedural fairness: did administrative decision-maker use the proper procedures in reaching a decision? 2. Substantive constraints: did the administrative decision maker make an error of the kind or magnitude that the court is willing to get involved in? 3. Remedies and the legitimacy judicial review: if there are procedural or substantive defects in the decision, should the court intervene, and if so, how? v. Procedural fairness the parts reviewing it: 1. The threshold question: court asks whether it should review the administrative decision-makers procedures or whether it is more appropriate to conclude that whatever the decision-maker decides to do by way of procedure is sufficient. i. If individual rights or interests are affected, there will be some procedural fairness. Exceptions: 1. Situations where the decision is a legislative or policy decision or preliminary or investigative 2. The content of procedural fairness: what should the procedure be? (if met, need more than minimal procedural fairness, full opportunity). i. Baker: 5 factors relevant in determining general level of procedural fairness 1. Nature of the decision and the process followed in making it 2. The nature of the statutory scheme (terms of statute pursuant to which body it operates) 3. The importance of the decision to the individual affected 4. The legitimate expectations of the parties, to what procedure be applied (for duty of fairness) 5. And the procedures chosen by the tribunal ii. After determining general level above, court decides from range of possibilities what specific procedures are required. Possibilities: (to what extent must the administrative decision maker act like a court) 1. Notice that the decision is going to be made 2. Disclosure of the information on which the tribunal will base its decision 3. Some opportunity to participate or make views known 4. A full hearing similar to that which occurs in a court 5. An opportunity to give evidence and cross examine 6. Right to counsel


7. Oral or written reasons for its decision Look for a statute or umbrella statute that specifies what kind of procedural right there is or denial of specific right, that would be otherwise be available in common law. Statute prevails over common law. If no statute, then use common law. Also check rules to which tribunal operates. 3. Bias, independence, and institutional decision making i. Institutional independence: is related to bias but is about systematic structure of a board or tribunal as opposed to individual decision making. Ask: do the members of the tribunal have financial security or do they have security of tenure? Are they so dependent or connected to govt that they cannot be perceived as having being sufficiently able to make independent decision. ii. Institutional decision making: extent to which boards and tribunals can consult with others to whom the person affected will not have had the opportunity to present his case. (one member hears the case, yet entire board decides) iii. Baker: need to respect diversity, culture, background, race, sensitive to immigration, be openminded. (officers note was bias) Substantive review iii. 1. Courts look at the decision itself, not procedures. Look at the standard of review (how big an error must tribunal make before court will get involved). Dunsmuir two categorical possibilities i. The standard of correctness - an exacting standard of review (was it correct decision, the same decision that the could would have reached) court will over turn if its not the decision court would reach (ultra vires) The standard of reasonableness respectful and forgiving standard (did the tribunals decision fall w/n range of reasonable alternatives?) court will only overturn if its unreasonable (intra vires)




Which standard of review to apply? Courts look at how much deference the court should give to the tribunal. i. If court decides to be deferential, it will be reasonableness standard (burden on those seeking to challenge decision). If court will not show any deference, it will be correctness standard. 1. Supreme court requires reviewing court to assume deferential stance as opposed to correctness. Correctness will apply to: questions of central importance to legal system as a whole and outside adjudicators area of expertise; constitutional questions, true questions of jdx, questions regarding jdx lines between two or more competing specialized tribunals. Reasonableness: Review court will see if any past precedence cases have decided the standard of review to be applied in this case. If none then court will move into in depth analysis of SOR weigh 4 non-exhaustive factors: (balance all four and then ask, was it reasonable?) a. b. The presence of absence of a private clause; (decision is final) The purpose of the tribunal, as determined by interpretation of enabling legislation; The nature of the question at issue; and The expertise of the tribunal



c. d. ii.

Judicial review is different than appeal. De novo: court repeats decision making process by hearing testimony, new evidence. In judicial review, court is restricted to evidential record that was before decision maker, no witnesses can testify and no new evidence. Oakes test: Standard of review in charter challenge cases will be reasonableness, with concept of proportionality, determining what is in fact reasonable. (burden in charter reviews under s. 1 is with those seeking to defend the impugned law or decision).


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Applying the concepts: Baker v. Canada 1. Sources of law 2. Scope of the appeal 3. Procedural fairness 4. Substantive review and abuse of discretion 5. PROCEDURAL FAIRNESS Sources of Procedural Obligations a. From natural justice to fairness: thresholds, content, and the role of judicial review b. Procedural Obligation Triggers (Knight three-prong and the concept of legitimate expectation)