Administrative Law Class Notes PDF

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Professor Lewans. From Fall 2018 term. ...

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Administrative Law September 6th 2018 Arthur Nicholson v Board of Police Commissioners  Junior Police officer in southeastern Ontario  Was on the force for about 15 months (ending second probationary period)  He pissed off his supervising officer  Working double shift and asked how to submit claim for overtime pay and supervisor told him to forget about it  Nicholson phoned regional office and asked them how to file for overtime which really pissed off supervising officer who saw that as act of insubordination  Regional Board terminated him  Litigation about legality of termination  Summarily termination (no facts, no reasons, nada)  Got a call from supervising officer and fired him next day  When challenged his termination on basis of being unfair  In admin law it means making a decision without hearing the party affected by your decision  In this case firing him without stopping to bother to hear his side of the story s. 27 of The Police Act regulations states: “No chief of police, constable or other police officer is subject to any penalty…except after a hearing and final disposition of a charge on appeal…but nothing herein affects the authority of a board or council …to dispense with the services of any constable within eighteen months of his becoming a constable.”  Police officer  after second probationary period  Senior officer = fairness, junior officer = SOL Laskin CJ: I am of the opinion that although the appellant clearly cannot claim the procedural protections afforded to a constable with more than eighteen months’ service, he cannot be denied any protection. He should be treated “fairly” not arbitrarily.  Fundamental common law principle of fairness that applies to any time a public official exercises public power they must do so in a fair manner and HEAR the person being affected  If municipal powers are going to expropriate land, they must hold a public hearing where land owners can go and tell them why they shouldn’t  If you’re going to levy a tax, you should do so in a way sensitive to the people you’re taxing  Fairness applies UNLESS statute explicitly says it doesn’t need to be and it wasn’t here  Should have been informed of case against him, ie tell him why he’s being terminated and he should have been given an opportunity to make submission to the board before they made their final decision CUPE v New Brunswick Liquor Corporation  Distribution of alcohol owned by Crown so all liquor stores are public corporations  Labor dispute broke out between management and their employees  There’s a labor struggle, employees walk off the job  Legislation says employees can’t picket and management can’t hire replacement employees because chances are labour dispute won’t be resolved quickly and chances of public unrest increase quite a bit  Public employee unions said they can go on strike but not picket on site. While management you can’t hire replacement employees so they started staffing stores with managers (hiring managers not employees) therefore doesn’t violate the statute  Case goes to labour relations board that disagreed  If they accept it, it will gut the provision and undermine everything it was meant to accomplish, the objectives will be undone  Management sought judicial review  Lost in SCC who up until then said that judges held the last word on statutory interpretation

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SCC said rule of law doesn’t require judges determine meaning of law all the time, their role is slightly different, their role is to require admin officials to give reasons for their decisions, and to ascertain whether those reasons re rationally justified in light of the legislation, constitution, principles of common law. So it gives admin officials an interpretive license but requires them to exercise it in a way that’s transparent an publicly justified. Why? Long history of labour disputes in Canada and labour and employment was really what admin lawyers cut their teeth Whatever decision they make is legally justifiable We won’t intervene because we disagree but we will if it’s so patently unreasonable that it can’t be supported by legislation

s. 102(3) of the Public Service Labour Relations Act: …employees may strike and during the continuance of the strike  (a) the employer shall not replace the striking employees or fill their position with any other employee, and  (b) no employee shall picket, parade or in any manner demonstrate in or near any place of business of the employer. s. 101(1) of the Public Service Labour Relations Act: Except as provided in this Act, every order, award, direction, decision, declaration, or ruling of the Board, the Arbitration Tribunal or an adjudicator is final and shall not be. questioned or reviewed in any court. Dickson J: (1) The labour board is a specialized tribunal which administers a complex labour relations statute. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to develop its own jurisprudence. (2) Was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? What is Administrative Law?  Administrative law concerns the legal regulation of public decision-making. Many scholars associate administrative law with the “rule of law”, which ensures that public decisions are rendered in a fair and legally justifiable manner.  By defending principles of transparency, due process, and legality, administrative law serves to guard against the arbitrary exercise of executive power.  Administrative law is closely related to constitutional law in the sense that it concerns the legal regulation of public power. Instead of regulating the exercise of legislative power, it regulates the exercise of administrative power.  Administrative law is complex, because it must adapt to a variety of different regulatory contexts.  Administrative law is controversial, because judges, lawyers, citizens, etc. disagree about the legitimate role of the state, the proper scope of individual freedom in a liberal democracy, and how law should regulate the relationship between citizens (even non-citizens) and the state. What types of decision-makers are subject to administrative law?  Public Officials and Institutions who exercise delegated authority  Cabinet Ministers (eg Federal Minister for Citizenship and Immigration, Provincial Minister for the Environment);  Regulatory Boards (eg Immigration and Refugee Board, the Alberta Labour Relations Board, Worker’s Compensation Board);  Administrative Tribunals (eg the Canadian Human Rights Tribunal)  Public Institutions with statutory or licensing powers (eg the University of Alberta, the Law Society of Alberta, Municipalities);  Crown Corporations (eg the CBC, Canada Post, CMHC);  Other public officials and institutions (eg Privacy Commissioner, Labour Arbitrators);  Private organizations and individuals whose decisions affect the public interest (eg Hockey Alberta).

What are the different sources of Canadian Administrative Law?  The Canadian Constitution  The Constitution Act, 1867  The Canadian Charter of Rights and Freedoms  The “Unwritten” Constitution  Statutes, Regulations, Official Policy Statements  Common Law Doctrine  International Treaties What are the different aspects of Canadian Administrative Law?  Procedural Fairness  Substantive Legality  Remedies  Standing September 11th, 2018 What is the “rule of law”? The “rule of law” is an powerful, evaluative standard which gauges the legitimacy of governmental action. By ensuring that administrative decisions are consistent with the “rule of law”, we can ensure that government acts consistent with publicly articulated legal standards instead of arbitrary private opinions. What is good about the “rule of law”? (1) The rule of law enables legal subjects to plan their lives in accordance with the law; (2) The rule of law acts as a safeguard against arbitrary political power; (3) The rule of law treats legal subjects with dignity, which entails a degree of due process and reasons. What is the “rule of law”? AV Dicey, An Introduction to the Study of the Law of the Constitution (1885)  (1) “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.”  (2) “no man is above the law…every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”  (3) “the general principles of the constitution…are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts”. Problems with Diceyan conception of the rule of law Tends to read the Constitution and enabling legislation narrowly, which frustrates the operation of the administrative state. Examples include:  The Labour Conventions Case—Privy Council strikes down much of Canada’s New Deal on the ground that Parliament’s POGG power is restricted to regulating the sale of alcohol and responding to a national emergency.  Labour Relations Board of Saskatchewan v John East Iron Works Ltd—section 96 of the Constitution Act, 1867 prohibits administrative officials from exercising powers traditionally exercised by common law courts (eg power to reinstate employees).  Toronto Newspaper Guild v Globe Printing—administrative decision-making processes which are “judicial” in nature must comply with full trial-type procedures (eg full right to cross-examine union officials about membership lists). What is the “rule of law”? Lon Fuller, The Morality of Law (1969) (1) the law must be general; (2) the law must be publicized; (3) the law must be intelligible; (4) the law cannot have retroactive force; (5) the law cannot be contradictory;

(6) the law cannot impose obligations that are impossible to perform; (7) the law cannot be so unstable that no one can understand what his or her legal obligations are; (8) the law must be enforced consistently with declared standards. Important Administrative Law Decisions from the Laskin Court (1973-1984):  (1) Nicholson v Haldimand-Norfolk Board of Police Commissioners: A general duty of procedural fairness will be implied unless expressly excluded by statute.  (2) CUPE v New Brunswick Liquor Corp: Judges should respect administrative decisions, so long as those decisions are rationally defensible in light of relevant legal standards.  (3) Crevier v AG (Quebec): citizens have a constitutional right to judicial review, but administrative officials are entitled to exercise a broad range of adjudicative power. Van Harten, Heckman, and Mullan on the Big Question “We see no necessary inconsistency between, on the one hand, the core values of the rule of law— government that is subject to law and respectful of the claims of individual dignity and basic liberties—and, on the other hand, the public interest in an administration with the capacity to deliver public programs effectively, efficiently, and responsively.” Different ways to uphold the rule of law  Political oversight  Ombudsman  Freedom of the press  Administrative appeals  Judicial review Judicial Review and the “rule of law” Parties with standing to challenge an administrative decision can seek judicial intervention in different ways: 1) Statutory right of appeal; 2) Application for judicial review; 3) Charter challenge. Superior court judges have access to ancient common law remedies which used to be known as “prerogative relief” or “prerogative writs”: (1) certiorari=remedy used to quash, nullify, or set aside an administrative decision; (2) prohibition=remedy used to order a tribunal not to proceed with a matter; (3) mandamus=remedy used to compel an administrative official to perform a public duty; (4) habeas corpus=a remedy used to compel an administrative official to justify a person’s detention or imprisonment. Provincial superior courts (e.g. the Alberta Court of Queen’s Bench) have inherent supervisory jurisdiction over administrative decisions at common law. The Federal courts have exclusive supervisory jurisdiction over federal administrative decisions by virtue of s 18 of the Federal Courts Act. Baker v Canada (Minister of Citizenship and Immigration) How can judges uphold the rule of law while respecting the legitimacy of an administrative decision? Facts: Nevis Baker comes to Canada in 1981from Jamaica and overstays her Visa. Works as a domestic, looking after someone’s house or kids. She lives and works in Canada for 11 years during which time she has 4 Canadian born children. After the birth of her 4th child she’s treated with post-partum and diagnosed with paranoid schizophrenia and undergoes treatment for that. During that time, immigration officials are alerted to her presence and commence deportation procedures. She sought legal advice and a letter of support from her treatment providers. Evidence was If you deport her, her condition will deteriorate, it will have profound negative impact on children, wreak havoc on some pretty important family relationships. Appeal to Minister of Immigration, and ask to exercise his discretion to allow her to stay on humanitarian compassionate grounds. What happened? What response did she receive to the exemption on humanitarian compassionate grounds?

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Page 13/14, she is unemployed, on welfare, no assets, 4 kids in Canada, 4 in Jamaica She’s got no qualifications Strain on welfare systems No humanitarian compassionate factors other than 4 Canadian born children

Procedural Fairness (1) What basic values motivate the duty of procedural fairness? (2) How does one determine the level of procedural fairness owed in a particular case? (3) What new duty was created in this case? How does that duty promote the rule of law? Reasonable Justification (1) Why did the Court hold that the appropriate standard of review was one of ‘reasonableness’ instead of ‘correctness’? (2) Why did the Court conclude that the decision was unreasonable? What legal standards did it use to assess the legality of the decision? September 18th 2018 Historical/Terminological Evolution  Originally, the principles of “natural justice” applied only to the exercise of “judicial” or “quasi-judicial” powers, while “administrative” powers could be exercised without legal constraints.  Beginning in Nicholson, you see a transition away from abstract categories and conceptual distinctions.  Nicholson also signals the broadening reach of the doctrine of fairness, as well as a more nuanced, contextual framework. Different Sources of Procedural Fairness  The Constitution Act, 1982  Charter of Rights and Freedoms (particularly ss 7-14); and  s. 35 (duty to consult)  The Canadian Bill of Rights  Enabling legislation  General legislation concerning administrative process (e.g. the Alberta Administrative Procedures and Jurisdiction Act);  Regulations  Official guidelines  Common law doctrine (Cooper v Wandsworth Board of Works, Nicholson and Knight);  Legitimate expectations. Some Basic Questions: 1. Does this type of decision require a duty of fairness? 2. If it does, what sources of law are relevant to this determination? 3. What level or degree of procedural fairness is required, having regard to the context of the case? 4. Was this particular decision-making process fair? Cooper v Wandsworth Board of Works  Contextualize the case (year, court, etc.)  Year: 1863  Court: England  Identify the main points (why is this case important?)  Read the case  Reread the case to ensure you understand the court’s decision and rationale  Evaluate the case  Make notes Facts: P, builder, was employed to build a house within the Wandsworth district. He had already reached the second storey, when the D, without giving him any notice, sent their surveyor and a number of workmen, at a

late hour in the evening. Building razed to the ground. Conflicting evidence as to whether or not the P had given the notice required by the 76thsection of the Metropolis Local Management Act, of his intention to build (must be given 7 days before). Admitted by the P that he had commenced digging out the foundations within five days of the day on which he alleged he had sent notice. If you fail to give notice, they can tear it down. Stands for important legal propositions. One of which is when someone exercises statutorily delegated power they must do so in a way that shows procedural fairness. Points:  Page 76, Doctor Bentley proposition o What is your proposition? Legislature says municipality can do this there this is a complete defence against Cooper’s o Counter: Common law line of authority form 1700’s all the way to Hammersmith and they stand for “it has been said that the principle that no man shall be deprived of his property without the opportunity of being heard”  Bottom of 75/Top of 76 o Principle only applies to judicial acts where admin body acts as adjudicator  Material investments, consequences  Does Cooper apply to welfare benefits? What about prisoners? Nicholson v Haldimand-Norfolk Police 1. How does the SCC ground the duty of procedural fairness in Nicholson? What sources of law does it invoke? a. Senior officers get procedural rights but doesn’t say anything about junior officers b. Lawyer for police board argument: only mention of procedural fairness is in s 27 in regulations and only gives rights to senior officers therefore we can infer that legislature intended to exclude procedural fairness to junior officers aka Nicholson c. expressio unius rule: a principle in statutory construction: when one or more things of a class are expressly mentioned others of the same class are excluded. d. Cooper: before you can make anyone suffer in goods or body, you take away their property or put them in jail. Interest in career and livelihood, part of your identity, reputation, many people dream of being a police officer, maybe he’s one of them, family relying on you (sole breadwinner). 2. Do you think the result in Nicholson is best explained by law (statutes, regulations) or the practical consequences of the administrative decision (terminating employment)? 3. What, practically speaking, does the duty of procedural fairness require the Board to do in this case? 4. Do you think the remedy was appropriate? Explain. Knight v Indian Head School Board 1. What does the Court mean when it says the right to procedural fairness is ‘autonomous of the operation of any statute’? a. School board says they won’t renew term. Knight says his interest in maintain employment is as important as Cooper’s house and didn’t get a hearing so court should order reinstatement. You see a reaffirmation of cases running from Cooper to Nicholson. Court says there may be a general right of procedural fairness. Common law presumption of a duty of fairness that applies to any administrative official or agency exerting statutory power. Issues of procedural fairness are live. 2. If the legal analysis for procedural fairness involves ‘contextual’ as well as ‘textual’ considerations, what factors must one consider? a. Not textually nuanced. Duty depends on three factors: i. Nature of decision ii. Relationship existing between body and individual, and iii. Effect of the decision on the individuals rights. 3. What exceptions, if any, apply to the duty of procedural fairness? a. Legislative nature may not attract, decision of a preliminary nature may not attract, b. Spectrum but does fade into nothingness

c. Relationship between decision maker and individual. Knight says board is executing a statutory power. 4. Practically speaking, what did the duty of fairness require in this case? Was Mr Knight reinstated? a. He did not get his job back b. He was entitled to fairness and he got it by c. Courts willingness to be flexible in how duty of fairness d. No formal adjudicator process but it was a more fluid process and he was sometimes before the school board and they explained their concerns to him e. He was able to respond through is lawyer Which government function could be immune from procedural fairness?  Legislative ...