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• Administrative law deals with all the various administrative tribunals to which the
Provincial and Federal governments delegated various powers to carry out numerous
mandates
Under what circs can cts intervene in the decisions made by these various tribunals:
There are four principle grounds of judicial review when the legislature has not provided a
statutory right of appeal. (the court may intervene when:
1. Procedural Impropriety- requires administrators to have a legal duty to act in a way that is
procedurally fair- requires them to give prior notice, reasonable opportunity to respond, impartiality
of the decision maker). An applicant will ask the court to quash (set aside) a decision that is made in
breach of a procedural fairness duty.
2. llegality- must be authorized by law. The courts must determine the scope of the legal
powers and duties of the agency by interpreting the relevant legislation.
1. The enabling statute- to ascertain whether it is required by law to afford an affected individual
procedures and, if so, what procedures a public authority must first look to the terms of the enabling
statute. Which may set pout a detailed list of procedural requirements that the decision maker must
follow in making decisions.
3. Policies and Guidelines- public authorities will frequently issue guidelines and policies,
sometimes regarding the procedural aspects of decision making, which do not set down legally
binding requirements. The power to make these soft law instruments may not need to be provided for
in the authority’s enabling statute.
4. General Procedural Statutes- some jurisdictions have enacted general procedural statutes
which constitute an additional source of procedural requirements. Ex- Ontario’s statutory powers
procedure act. The scope of these procedural codes may be limited by a public authority’s enabling
statute and delegated legislation.
5. Common law procedural fairness- The traditional common law doctrine-for procedural
fairness-English case- Cooper v Board of Works for Wandsworth District
• There are 2 grounds upon which a court may review an administrative tribunal’s decision:
1) Procedural deficiencies- Proced leading up to a partic decision – ie, must make decision
pursuant to a partic procedure. Proced is about challenging a decision on the basis that the
proced leading up to the decision was inadeq
• Judicial review of Ontario bodies is governed by the Judicial Review Procedure Act and
the Rules of Civil Procedure
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• Federal decisions are governed by the Federal Courts Rules and the Federal Courts Act
• Federal Courts can only review the actions of federal bodies and provincial courts can
only review decisions of provincial bodies unless the challenge being brought is a
constitutional one
2. Fed decisions are governed by the Federal Courts Act and the Fed Courts Rules
a. Fed cts can only review decisions made pursuant to fed statute
b. Prov cts can only revie
i. Prov sup cts are allowed to review applications made when it is about
the constitutionality of the decision
b) Only the actual exercise of statutory powers can be reviewed (FCA s.2(1), JRPA s. 1)
Decisions outside of scope of statute cannot be judicially reviewed.
c) Only decisions with an element of finality can be reviewed. If no appeal has been
used, use first- courts reluct to review if appeal avail
There are two categories within the procedural realm: (if Ontario decision and challenging on
the basis of procedure must mention the Statutory Procedures Act)
a) Natural justice
b) Fairness
The two categories, however, should not be divided rigidly and generally overlap (Martineau)
Natural Justice
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• applies when proceedings are can classified as either judicial or quasi-judicial in nature
a) Hearing contemplated
• The notice must be given sufficiently early and provide enough info to allow those
involved in the proceeding to know the case that they are required to meet
• The notice must also disclose the real intention of the decision-maker
• In Ontario the rules of natural justice are codified in the Statutory Power Procedure Act
(SPPA)
• Federally there is no equivalent to the SPPA and, thus, the common law applies in this
context
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2) right to an impartial decision-maker (right to have decision decided on merits –no personal
bias and no institutional bias...every decision must be made by the person who hears the
case..can delegate research as long as the the person hearing the case is the decision maker-
*Rules of Nat Just are codified in the Statutory Power Procedures Act (SPPA) in Ontario
a. Have the SPPA with you in the exam – become familiar with it
SPPA is not the final say – it is the bare bones that is then supplemented with
the CL
5.Federally there is no equivalent to the SPPA when dealing with fed decisions you
apply only the CL
Bias
Personal
i.One of the DMs has an ulterior motive or int riding on this decision
something that would induce the DM to make a dec based on
something other then the merits of the case
ii.Grounds for alleging that there is pers bias can emanate from a
number of diff places
1. Could be hidden in the question
b. Institutional
Institutional decisions
a. Delegating decisions to subordinates can be done as long as the statute
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allows you to delegate
National Emergency Board- is there a reasonable apprehension of bias with a reasonable person
Institutional Decisions- every decision must be made by the person hearing the case. Can
delegate research as long as the person hearing the case is the decision maker.
Fairness
*problem questions- state tribunal granted x but should have been given y- more serious
• Monetary remedy
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*after Nicholson there is no longer a need except where the statute mandates it to
distinguish between judicial and quasi judicial admin decisions. This distinction is less
important snf esd found to be of little utility since both the duty to act fairly and the duty
to act judicially have their roots in the same general principles of natural justice. (see
syndicat des employes de production du quebec et de l’acadie v Canada.
Factors affecting the duty of fairness (from Baker): Analysis (common law)
b) Nature of the statutory scheme and terms of the statute pursuant to which the body
operates- Baker case(means whether the decision is determinative of of rights- is appeal
available, final decision, if no appeal available then should be given more procedural
entitlements)
e) Choices of procedure made by the tribunal- Trib making the decision chose a proced
pursuant to which it made that decision- turn to SPPA is applicable
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Structure for answering the question:
a. Assess the nature of the sit that you are presented with
b. Eval what procedural entitlements should be granted in the sit – based on the
**You are reqd to decide where on the spectrum you lie and then decise what from A
to Z ought to have been granted
a. if you decide A to X but the proced that was provided was only A to H then you may have
ground to challenge the decision on the basis that procedure was inadequate
2. Substantive Review- review based on the error of law, fact or a mix of the 2
rule
2. Always start with the statute here as well
3. Isolate the decision that was made
4. First frame the issue to estab that there are grounds for challenging that there are errors of
fact or law
5. Next establish the SOR – to what degree is the reviewing ct going to defer to the
tribunal
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a. How willing is the ct going to be to interfere with the decision that was made
Standards of Review (ie, the level of derence that ct will give to trib’s decision) – there used
to be 3, but now there are only 2 SORs (Dunsmuir) (SORs define the cts willingness to
interfere with the deciosn of a trib)
• Standard of review refers to the level of deference that the reviewing court will show to
the administrative tribunal’s decision- how unwilling/reluctant will court be to idea of
reviewing the decision made by tribunal, standard of review indicates willingness of
court to review decision made by tribunal)
2 standards of review:
• (2)correctness is the less deferential- courts will always intervene and if flawed-quash.
• Error of Law and/fact (faulty procedure)..... (challenge the decision on the basis that it
was wrong)- Can seek judicial review of the decision
Substantive review is challenging the decision on the basis that the decision was wrong- what
has to happen before decision is made and also based on law/statute
1) Misinterpret the law- made a mistake in accessing what the law means
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2) facts presented- misinterpret facts that are presented
3) Both
• Previously there was a third standard, patent unreasonableness but it was recently
discarded by the Supreme Court in the Dunsmuir decision
In challenging the decision itself, the courts must go through standard of review- courts will
distill on tribunal how willing to review- requires to go through standard of review Dunsmuir
case
a) Privitive clause – clause within the statute that states that the decisions made on the
basis of statute not subject to judicial review- do not review..decisions final- pushes
towards more defference because court will respect what Parliament-legislature
wanted (heavily weighted factor prior to Dunsmuir)
c) Interpreting one’s own statute-in interpreting ones own statute and in dealing with
area of law
e) Nature of the error- establish what kind of error- whether error is fact, law or mixed
(misinterpretation)- decide reasonableness=fact or correctness=law
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If error in fact- tribunal is in a better position then the courts to appreciate the
facts B/C the case presented in front of tribunal= access to demeanour or
character-courts deferential to tribunal
*Dunsmuir added that in event that it is a major question of law- invariably push
towards correctness standard- includes interpretation of constitution.
Dunsmuir v. New Brunswick, 2008 SCC 9 , is the leading Supreme Court of Canada
decision in Canadian administrative law on the topic of substantive review and standards
of review. The decision is notable for combining the reasonableness (simpliciter) and
patent unreasonableness standards of review into a single reasonableness standard.
Facts:
D was employed by the DOJ of NS. He held a position under the Civil Service Act (barring any
statute, ordinary rules of contract will govern termination of EE in civil service and was an office
holder “at pleasure”). His probationary period was extended twice and the employer
reprimanded him on three separate occasions during the course of his employment. On the third
occasion, a formal letter of reprimand was sent to D warning him that his failure to improve his
performance would result in further disciplinary action up to and including dismissal. While
preparing for a meeting to discuss D’s performance review the employer concluded that D was
not right for the job. A formal letter of termination was delivered to D’s lawyer the next day.
Cause for the termination was explicitly not alleged and D was given four months’ pay in lieu of
notice.
*Dunsmuir v New Brunswick- changed the law in relation to the application of procedural
fairness to the dismissal of public office holders as laid down in Knight. It held that where a
public office holders employment is governed by an employment contract disputes relating to his
or her dismissal should be resolved according to the express or implied terms of the contract and
any applicable statutes and regulations , just like any contractual employee. In other words, a
public authority that dismisses an employee pursuant to an employment contract is not subject to
an additional public law duty of fairness and the public employees seeking to challenge the
dismissal is limited to ordinary contractual employees.
3) Where a duty of fairness flows by necessary implication from the statutory power
governing the employment relationship- including for example a statute that provides for
notice of employees of motion to dismiss.
See p 105
Discretionary Decisions- still apply standard of review analysis but also push towards more
deference. Alot of room for maneuver on who makes decision- Parliament does not outline
criteria in making decision- tribunals must do what makes sense and it is up to the tribunal to
decide- courts can quash for abuse of discretion
Jurisdiction- substantive issue- are you operating within the given/granted to your boundaries-
statute outlines. Push towards correctness standard invariably if jurisdiction issue.
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Remedies (codified in statute- JRPA sec 2, CAS 18.1(3)
b) Certiorari: the power to quash or set aside the decision of an administrative actor
d) Habeas corpus: remedy available to persons detained or imprisoned and requires the
person or entity detaining to produce the applicant before the court and justify his/her
incarceration
Equitable remedies:
a) Declaration-
b) Injunction
c) Interim relief
Baker
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‘PC is unemployed – on Welfare. No income shown – no assets. Has four Cdn.-born children –
four other children in Jamaica – HAS A TOTAL OF EIGHT CHILDREN
Says only two children are in her “direct custody.” (No info on who has the other two).
There is nothing for her in Jamaica – hasn’t been there in a long time – no longer close to her
children there – no jobs there – she has no skills other than as a domestic – children would suffer
– can’t take them with her and can’t leave them with anyone here. Says has suffered from a
mental disorder since ’81 – is now an outpatient and is improving. If sent back will have a
relapse.
Letter from Children’s Aid – they say PC has been diagnosed as a paranoid schizophrenic –
children would suffer it returned –
Says PC had post-partum psychosis and had a brief episode of psychosis in Jan. when was 25
yrs. old. Is now an out-patient and is doing relatively well – deportation would be an extremely
stressful experience.
Lawyer says PC is sole caregiver and single parent of two Cdn. born children. PC’s mental
condition would suffer a setback if she is deported etc.
This case is a catastrophy. It is also an indictment of our “system” that the client came as a
visitor in Aug. ’81, was not ordered deported until Dec. ’92 and in APRIL ’94 IS STILL HERE!
There is also a potential for violence – see charge of “assault with a weapon.” ’
Issues: What’s the standard of review when officer has discretion? Has there been a breach of
procedural fairness?
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Unreasonable b/c of immigration officer’s Failure to give appropriate consideration to the factor
of best interests of the child, as emphasized in intl law, Immigration Act, and H &C Guidelines;
officer’s decision “was inconsistent w/ values underlying grant of discretion”; notes of Lorenz
reveal that exercise of discretion went beyond permissible boundaries of statute and public
international law, show reasonable apprehension of bias shown in notes, esp. b/c of her children,
and her previous mental health care. Officer fulfilled duty to give reasons.
1. consider the nature of the decision being made: the more the process provides for the
function of the admin tribunal, the nature of the decision making body, and the
determinations that must be made to reach a decision resemble judicial decision making,
the likelier procedural protections closer to trial model will require procedural fairness
(66)
2. The agency’s own choice of procedures. Where statutory regimes allows the agency to
define own procedures, or when the agency has an expertise in determining appropriate
procedures, courts should show deference
3. Consider the nature of the statutory scheme; greater procedural protections required
where no appeal procedure w/in statute, or when the decision is determinative of the issue
and further requests cannot be submitted
4. The importance of the decision to the individual(s) affected—e.g. high standard of justice
where one’s profession/employment at stake, such as in disciplinary procedure
5. If claimant has legitmate expectation that certain result will be reached in his/her case,
fairness may require more extensive procedural rights than otherwise accorded
Underlying values: individuals affected should have chance to present case fully and fairly, and
have decisions affecting their rights, interests, or privileges made using a fair, impartial, and
open process, appropriate to the statutory, institutional, and social context of the decision
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