Administrative Law Exam Notes PDF

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Administrative Law Standing and Access Standing will be available through the following mediums;  Under Statute  Personal standing: party is directly subject to an adverse effect by the statute or action in question, and the harm suffered will continue unless the court grants relief. This is called the "something to lose" doctrine, in which the party has standing because they will be directly harmed by the conditions for which they are asking the court for relief.  Public interests standing: allows a person or organization to bring a case notwithstanding their lack of direct involvement in the matter, or any infringement of The courts allow this when the public interest dictates that a their personal rights. possible illegality not go unchallenged. (essentially person can bring a case at the court’s discretion where the normal standard of personally being affected is not met) Essentially Where a person was directly affected, and the error was patent rather than latent in the case of prohibition, the remedy was available as of right but where it was a mere stranger they could seek certiorari (essentially judicial review) and prohibition however court had discretion to refuse relief. 3-part Finlay test for standing (Finlay v. Canada (1986) SCC); [TEST 4 STANDING]  First, is there a serious issue raised as to the invalidity of legislation in question?  Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity?  Third, is there another reasonable and effective way to bring the issue before the court? The general rule in cases involving public right or interest is most commonly cited in Boyce v. Paddington: P can sue without permission of AG in two cases:  Where the interference with the public right is such that a private right is simultaneously interfered with  Where no private right is interfered with but P in respect of his public right suffers special damage to himself from the interference with the public right DESWUAVS Test for Public Interest Standing (Canada v DESWUAVS (SCC 2012) (3 Considerations for public interest standing) [SUPPLEMENTS FINLAY]  Is there a serious issue of invalidity? Finlay noted that the issues of standing and of whether there is a reasonable cause of action are closely related and tend to merge. Mere error of law might not be serious enough to amount to anything more than abuse of discretion.  Does applicant have a real stake or genuine interest in the case  Is there another reasonable and effective way to bring the challenge in all the circumstances including: (i) whether the proceedings is an economical use of judicial proceedings (ii) Whether the issues are presented in a context suitable for judicial

determination in an adversarial setting (iii) Whether allowing the proceeding to continue will uphold the principle of legality? Principle of legality: (1) state action should conform to the Constitution and statutory authority (2) there must be practical and effective ways to challenge the legality of state action

Standing of the Decision-Maker Traditional view: Tribunal limited to making submissions on jurisdiction and not on merits of the case. (Northwestern Utilities v City of Edmonton, SCC 1979) Modern view: A reviewing court should first look to the tribunal’s governing legislation to see if it clearly establishes the role of the tribunal in an appeal or review of its decisions if not then Courts have discretion to grant standing depending on the context and considering the following factors: (Ontario Energy Board v Ontario Power Generation (SCC 2015-Case deals with the extent a tribunal can defend its own decisions)  If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.  a reviewing court must balance “the need for a fully informed adjudication against the importance of maintaining tribunal impartiality”  If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.  Tribunals role- Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns. Assessing those factors consider; (1) Whether there is standing; and (2) Content of submissions (consider bootstrapping-tribunal attempting to add to its initial decision with additional reasons or justifications provided in argument during judicial review proceedings.)

Discretionary Bars to Relief Courts have overriding discretion to deny relief through judicial review. Common grounds for discretionary bars to relief;  Adequate alternative remedies and prematurity  Mootness  Delay  Collateral attack  Conduct of the applicant In exercising their discretion to deny relief on judicial review, the courts will take into account the public interest (is the public interest advanced more through hearing or not hearing the application?), any disproportionate impact on the parties and the interests of third parties (Khosa 2009) Adequate alternative remedies and prematurity Court may refuse to hear JR because brought prematurely i.e. before administrative process has run its course Courts will only hear JR prior to completion of admin process in exceptional circumstances Prior to completion of admin process = Decision on the merits Exhaustion of all statutory appeals and reconsideration mechanisms Rationales (CB Powell, Volochay) 1. Promoting efficiency by preventing fragmentation of the administrative process 2. Ensuring a complete record before the court so as to permit effective JR 3. Demonstrating appropriate deference to admin decision makers Adequate alternative remedy is closely related to prematurity and the relevant inquiry is whether the admin process allows the issues to be raised and an effective remedy to be granted (CB Powell) (Need not be exactly the same as what court could do on successful JR). Key consideration is whether the alternative remedy is adequate: (a) Does the administrative process allow the issue to be raised and resolved, and (b) can it grant an effective remedy that cures the defect If the application is premature or AARs have not be exhausted, the applicant must demonstrate exceptional circumstances Case law: Howe v Institute of Chartered Accountants (ONCA 1994) JR was found to be premature because;  H had right of appeal to statutory appeal committee  H could raise allegations of breach of PF on appeal  Could also raise allegations before full panel of discipline committee Volochay v College of RMTs (ONCA 2012) JR dismissed as premature: statutory remedial route available but not yet followed Specifically, V had right to request HPARB review. Confirmed certain principles reflecting current state of the law

1. Breaches of procedural fairness are not questions of “true jurisdiction” on the Dunsmuir formulation 2. Neither breaches of PF nor questions of true jurisdiction will automatically entitle someone to judicial review if AAR exists 3. Relationship between AAR & prematurity  rule against prematurity “has particular force where adequate alternative remedies are available. 4. Confirms the “rationales” for the prematurity principle from CB Powell Efficiency Ensuring a complete record for JR Showing appropriate deference to admin DMs 5. To be an effective or adequate remedy, the defect must be capable of being raised before the reviewing body and the reviewing body must capable of curing the defect Air Canada v Lorenz (FCTD 2000) [LEADING CASE FOR PREMATURITY] Several factors potentially relevant to whether court will hear JR before proceeding comes to an end;  Hardship to the applicant in proceeding with the hearing in the face of an allegation of bias  Waste of resources devoted to the hearing if the end result is that the applicant successfully argues RAB  Delay in the completion of the hearing  Fragmentation resulting in proliferation of litigation  Strength of the case  Statutory context: are there indications in the legislation that the legislature intended to keep judicial oversight of the proceedings to a minimum? Mootness Mootness principle reflects general reluctance of courts to decide cases that raises merely hypothetical or abstract questions Applies when the court’s decision will not have the effect of resolving a controversy that affects the rights of the parties. Two-step analysis from Borowski (SCC 1989): 1. Whether the tangible and concrete dispute has disappeared, and the issues have become academic; and 2. If so, whether Court will nonetheless exercise its discretion to hear the case Court will exercise discretion to hear case in situation such as;  JR would have collateral consequence in the proceedings, which are ongoing  Issue at stake is of a recurring nature, particularly in cases where the foundation of any particular challenge will have disappeared  There remains a public interest in resolution of issues Delay JR may also be refused where the applicant has delayed in commencing the application Delay may go to either:  Jurisdiction – failure to adhere to limitation period will deprive the court of jurisdiction

 Discretion –even if there is no limitation period court will on occasion deny relief on the basis of undue delay, doctrine of laches (a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party.) Key consideration is whether the delay has caused prejudice (Friends of Oldman River Society v Canada). Collateral Attack Attack on decision made in a proceeding the specific object of which is something other than the reversal, variation or nullification of the decision. Courts will not normally entertain collateral attacks. The rule against collateral attack may be raised to prevent a party from attacking the validity of an order through a different forum, rather than the designated appeal or judicial review route. R v Consolidated Maybrun Mines (SCC 1998) Collateral attack calls on court (not necessarily a superior court) to determine legality of administrative order therefore it must be weighed against concern for rule of law and must determine legislature’s intention as to proper forum to challenge order (Presume legislature did not intend there to be no way to challenge the order) To determine whether challenge is impermissible “collateral attack”, consider: 1. Wording of statute from which power to issue order derives 2. Purpose of legislation 3. Availability of an appeal from the order 4. Nature of the collateral attack in light of the appeal tribunal’s expertise and purpose 5. Penalty on conviction for failing to comply with the order Factors operate not as absolute criteria but as “important clues” to determining legislative intent as to the forum in which an order ought to be challenged Misconduct Courts may deny a remedy because of the way in which the person seeking relief has behaved Homex Realty and Development Co v Wyoming (Village) (SCC 1980)  “the principles upon which [JR remedies] have been issued have long included the principle of disentitlement where a Court, because of the conduct of [the person seeking the remedy], will decline to grant a discretionary remedy” Waiver: Failure to object to a breach of procedural fairness may cause the court to deny relief on the basis of waiver or acquiescence. Balance of Convenience Courts may deny relief based on a balancing of the applicant’s interests against the public interest, the interests of other parties and the interests of strangers to the litigation (Mining Watch Canada v Canada 2010);  Balance of convenience considerations underpin many of the discretionary bars  May also be an independent basis to deny relief  Court may determine that, despite denial of PF, the result would have been the same.  In that sense, a new hearing would be futile (Mobil Oil, SCC 1994)

 Court may determine that effect of granting relief might be so disruptive the impugned decision will be allowed to stand even though the outcome might have been different.

Remedies Remedies available on judicial review have their roots in ancient prerogative writs, such as: a) Certiorari ("cause to be certified") - Special proceeding by which a superior court requires some inferior tribunal to provide it with the record of its proceedings for review to see if it exceeded its jurisdiction - A successful certiorari application results in "quashing" the tribunal's order or decision b) Prohibition - Issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a non-judicial court from exercising a power (negative remedy) - Unlike certiorari, which provides ex post facto relief, this provides pre-emptive relief like a CL injunction to prevent an unlawful assumption of jurisdiction c) Mandamus ("we command") - Writ issued by a superior court to compel a lower court or government agency to perform a duty it is mandated to perform - In practice, often combined with an application for certiorari - ie: certiorari used to quash decision (ie: for lack of procedural fairness) while mandamus used to force the tribunal to reconsider the matter in a procedurally fair manner d) Declaration - Judgment of the court that determines the legal positions of the parties - Public law ones used to declare gov't action ultra vires; private law ones declare statutory rights - Declarations are not enforceable, and can't require anyone to take/refrain from action e) Habeas Corpus ("produce the body") - Writ to bring a person before a court...used to ensure imprisonment/detention is not illegal Like certiorari, it is alive and well in the USA (ie: death penalty reviews to federal courts) f) Injunction - Judicial order that restrains a person from beginning or continuing an action, or that compels a person to carry out a certain act - Over time, prerogative writs came to be archaic because small technicalities or wrong choice of writ would bar potentially meritorious applications...as a result, many provinces and feds made reforms (ie: Federal Courts Act and BC ATA) - However, the underlying writs are still important to know what remedies you get with judicial review

Reach of Public Law Remedies Administrative law remedies are focused on providing remedies against the use of public power, as opposed to private bodies. So, whether a body and decision are subject to public law remedies remains a relevant preliminary consideration to judicial review applications Federal Courts Act grants the federal courts jurisdiction to grant reliefs; Federal Courts Act 18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction to grant relief against any federal board, commission or other tribunal and to hear and determine any application or other proceeding for relief in the nature of relief including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal s.2(1) of Federal Courts Act- federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867 Judicial Review Procedure Act grants courts ability to grant relief on application by way of originating notice; Judicial Review Procedure Act s.2(1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: 1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. 2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. Section 1 of this act defines statutory power” as a power or right conferred by or under a statute, (a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation, (b) to exercise a statutory power of decision, (c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing, (d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party; Air Canada v Toronto Port Authority (FCA 2011) Issue here was whether TPA was a “federal board, commission or other tribunal” subject to relief under s 18.1 Federal Courts Act?

Stratas JA delivering the judgment for the court set out a list of criteria to be considered when issue arose as to whether a particular decision or decision maker was amendable to public law judicial review;  The character of the matter for which review is sought Is it a private, commercial matter or is it of broader import to the public?  The nature of the decision-maker and its responsibilities Is the decision-maker public in nature and recharged with public responsibilities? Is the matter under review closely related to those responsibilities?  The extent to which a decision is founded in and shaped by law as opposed to private discretion If the decision at issue is authorized by or flows directly from law (statute, reg or order), more likely to be public  The body’s relationship to other statutory schemes or other parts of government  The extent to which a decision-maker is an agent of government, or is directed, controlled or significantly influenced by a public entity Ex. private persons appointed by public entity to carry out certain actions that are public in nature  The suitability of public law remedies  The existence of compulsory power over the public at large or a defined group, versus having power only by the consent of parties who submit themselves to jurisdiction  An “exceptional” category of cases where the conduct has attained a serious public dimension *endorsed in Setia v Appleby College (ONCA 2013) Procurement Decisions Volker Stevin v NWT (NWT CA 1994) Main takeaways o Purely commercial decisions relating to procurement by government of goods and services generally do not fall within the class of cases which will be subject to Judicial Review. o However, this decision went beyond simple procurement due to the decision not affecting an individual contract but the ability of the business to be effective in the Northwest territories---This brings it into the aspect of public duty and fairness (procedural fairness) and as such subject to JR. o Focus was on the nature of power being exercised more than on its origin and decisions will be reviewable if an analysis of the functions discloses a duty of procedural fairness. Voluntary Associations group of individuals who enter into an agreement, usually as volunteers, to form a body (or organization) to accomplish a purpose. Ripley v Investment Dealers Association of Canada (NSSC) Issue: Was IDA, “self-regulatory organization” – not created by statute but recognised by statute (in this case Securities Act) subject to JR. Held: Not subject to JR. Considering the Air Canada factors

o Organization is recognised by statute but does not derive any authority to discipli...