Canadian Administrative Law PDF

Preview

Summary

Study notes for Canadian Administrative Law...

Description

1"

"""""""""""""1""

"

"""1"

"

ADMINISTRATIVE LAW 1) ADMIN LAW SUBJECT MATTER

Readings: (CB, Chapter 1; S & F Chapter 1) [JR = Judicial Review / HoC = House of Comm]

What is Administrative Law: Administrative is the body of law that governs how people exercising power pursuant to a delegation of power in a statute (or occasionally the royal prerogative) go about their business. ! In most cases, the people who have this form of power (again, typically given to them by a statute) are members of the executive branch of government, although often at some arm’s length from it. In our system, based on the rule of law, we want to make sure that people with this power exercise it properly. Almost all of administrative law is about deciding what we mean by “properly” Role of the Courts: to ensure the decision-maker’s do not step outside the boundaries of what they are legally empowered to do (via statute). For example, the courts review delegated decision-making. !

Brown 2000: The overreaching theme of JR at time intertwined Constitutional Law and Admin Law: ! Example: BC Electric Railway v CNR 1932: successful challenge prevent Board from exercising jurisdiction over foreign-owned BC rail operator (rather, jurisdiction was limited to railways provided for by FED leg).

Subject Matter of Law: law governing the implementation of public programs, particularly at the point of delivery, where they are likely to have their most immediate impact on the lives and rights of individuals. Reasons for Expanding Administrative Law: (1) Desire to depoliticize certain decision (2) Need for greater specialization in decision making (3) Reluctance to have courts hear matter not suitable to JR because floodgate Administrative Law Concerns: ! The legitimacy of the decision given the significant impact a decision could have on an individual and the fact that boards and tribunals were not publically accountable to same way the government is (ie: passing leg via HoC)

Theories of Admin Law: (Conflict/Tension) Legal Formalism: (A.V Dicey and followers) • Law was composed of ‘scientific legal rules’ rules are discerned by close examination. Legal docs spoke for themselves by looking at ‘plain meaning’ of word. Judges could not ignore the policy implications of the impartial ruling. • Dicey emphasized ‘individual rights’ and role of court as upholder of these rights. • o

Rise of Welfare State= Resistant- Role of lawyer to rise up and protect the rule of law against the executive. Lord Hewart: “Depotism” meant placing government departments ‘above sovereignty of Parliament and beyond the jurisdiction of the Courts’, and he was dismayed at the delegation by Parliament of legislative powers to government department

•

Formalism begun to affect constitutional interpretations such that Administrative agencies were increasingly challenged as being outside the jurisdiction of the fed or prov creator.

Progressives: (Pound) • Common law reasoning should be instrumental and seek social welfare Functionalists: (Direct Opposition to Dicey- ‘Social Welfarism as goal of Delegated Legislation) • Where Dicey argues ‘liberty’ imposed a negative obligation on government (not to interfere with individuals and their actions, they argue liberty imposed + obligation on government: to provide individuals with basic qualities of human life. • View delegated legislation as essential to achievement of goals and social welfarism. • Why? John Willis: if state was to look after subjects, then sweeping delegation of Parliament power to Admin was necessary for welfare state to operationalize itself. Based on efficiency. • ROLE OF COURTS: JR would always be sporadic and in any event, the judges ignorance of policy should disqualify them from a major role.

1"

"""""""""""""1"

"""""""""""""" 1"

2"

"""""""""""""2""

"

"""2"

" Subject Matter of Public Admin: Principle Institutional Roles: BODY LEGISLATURE CABINET

MUNICIPALITIES

CROWN CORPS

PRIVTE BODS/ PUB FUNC

IND ADMIN AGENCIES:

Feature of Independent Admin Agencies (most, if not all):

ROLE Principle public forum where decision are explained/ debated. Nearly all public programs originate with statute enacted by either PROV or FED Minister has responsibility for department (fed) or ministry (prov) that is established by statute. Minister is accountable for exercise of powers assigned to her or those under his discretion. Exercise powers which are delegated by PROV, subject to provincial guidance/control. But as elected members they debate and pass bylaws and resolution within their granted powers. Enjoy substantial independence in day-to-day operations. Purpose of independence: to enable them to make commercial decisions without government interference. Gov still have considerable influence: eg. CBC. Some derive legal authority from contract, and may resemble admin agencies that otherwise discharge governmental functions. EX: Sporting Bodies, Child Welfare Most distinctive institutions of Admin State (board, tribunals, commissions). They have been created in every jurisdiction without an overall organizations plan. Similarities: ! Measure of independence from gov. dep ! Those likely affected by decision are given opp to participate in decision making process by providing evidence ! Operate at ‘sharp-end’ of admin process—aka they apply to the individuals. EX: denial of license, refugee determinations ! They are specialized Differences: ! Different sized policy-making mandated ! Some resemble courts in their structure ! Some agencies have giant caseloads

Where do Courts get their Power to review? 3 Sources of Review Power: (1) Original Jurisdiction: Ordinary courts have jurisdiction over decision of admin- decision-makers when they are challenged on grounds that state has infringed an individuals private legal right (tort/contract) (2) Statutory Right of Appeal: Right must be provided for in statute, there is no automatic right to appeal the substance of admin decisions (3) Court’s inherent JR jurisdiction: Superior Courts in each prov may review decisions made by institutions and officials with responsibility of administering public programs, via courts inherent JR jurisdiction (s.96) Effect of Privative Clauses: The legislature often inserts privative clauses into statutes in an attempt to stop courts from reviewing the decisions of admin decision-makers; courts ignore the clause or interpret them in a very restrictive way. McRuer Commission 1968: o Helped to bring about a basic codification process of procedures for admin tribunals o Set up response to criticism of a government bill conferring a broad-ranging investigatory power to a Commission. CODIFICATION PROCESS: (procedures to extend availability of JR): ! Statutory Powers Procedure Act, Ontario 1971 (SPPA) ! 1971 Judicial Review Procedure Act: established rules for courts reviewing errors of both law/fact. Federal Court Act 1970: allowed for almost complete transfer of ‘remedial jurisdiction over federal statutory decision makers from provincial superior courts to newly created Federal Court of Canada’. Section 96 CA 1867: power to enact federal courts • Statute provides a foundation for the court’s to not accept privative clauses as ‘ousting their authority’. HOW? o Admin Agencies/Tribunals only derive power from legislation, thus powers are limited. PAR SUP Parliament can enact anything. However, arguments exist that there is an implied constitutional guarantee via 96-100 of JR of 2"

"""""""""""""2"

"""""""""""""" 2"

3"

"""""""""""""3""

"

"""3"

" o

•

admin action Provinces do not have the jurisdiction to enact s.96 courts, however they enact administrative tribunals (de facto s.96 courts) by inserting privative clauses for immunity. " unconstitutional. Superior Court have developed a 3 part test to determine whether an administrative tribunal is actually acting like a s.96 court (thus unconstitutional) as its without jurisdiction to do so: (1) Is admin decision similar to one that at time of Confed, would have been exclusively within power of a superior court? (2) Is impugned power a ‘judicial’ power as opposed to an admin/ legislative power? (Judicial power being one where private disputes between parties, and adjudicated through a recognized body of law) (3) Has decision making power in its contemporary institutional setting sufficiently changed its character such that it did not conform to the jurisdiction of the court?

Crevier v AG(QB) 1981: [leading admin tribunal masquerading as s.96 court] Facts: ! Quebec Professional Tribunal hears appeals from discipline committees of most statutory professional bodies. ! Tribunal was composed of provincially appointed judges. Act included a privative clause stating tribunals decisions were final Issue: Was QPT acting like s.96 Court? Held: Per Laskins CJ: ! Prov in creating a tribunal could include a privative clause if it allowed SC jurisdiction to review questions of jurisdiction even if there was limited JR of all other kinds of decisions from tribunal. Wording of clause ousted SC thus unconstitutional. Analysis: Ratio: There is a constitutionally recognized right to JR, s.96 courts are entitled to check jurisdiction of admin board.

Grounds of Judicial Review (JR): There are 4 grounds of review that may overlap: (1) Procedural fairness: Administrators generally have a legal duty to act in a way that is procedurally fair. This may require prior notice and a reasonable opportunity to respond to those likely affected. (2) Illegality: Court must determine the scope of the legal powers and duties of the agency by interpreting the relevant legislation. Admin action has not legal validity if it is not authorized (3) Unreasonableness: Admin also have a legal duty not to exercise their powers unreasonably. Lack of reasonableness is a grounds of review. Similarly, admin action might infringe on Charter right and must be justified under s.1 (4) Unconstitutionality: Since Charter, common that lawyers frame court challenges to admin action in terms of both common law and the constitution. There is an overlap in admin and constitutional law.

Intro to Procedural Fairness and Substantive Review: Procedural Fairness: Procedural fairness or natural justice as required by Section 7 Charter, requires court in reviewing actions of tribunal to determine whether the procedure followed by the tribunal in coming to the decision was proper. Step 1: “Threshold Question”: Is it the kinds of decision that should attract some kind of procedural right? WHAT" " Court is asking whether it should review the decision- maker’s procedures or conclude that whatever decision maker decides to do by way of procedure is sufficient? • Where an individuals right/ interest is affected by the decision= entitlement to procedural fairness • Legitimate expectation? – should individual be entitled to certain procedural rights if some representation has been made that such rights are forthcoming? • Basic principle: fair process may be required even if not provided for in statute. Nicholson v Haldimand PC 1979 SCR: Laskins CJ held that a police constable employed during a probationary period could not be dismissed arbitrarily without being given reasons. 3"

"""""""""""""3"

"""""""""""""" 3"

4"

"""""""""""""4""

"

"""4"

" Step 2: Where threshold for some form of procedural fairness has been met, court determines what those procedures will be: Baker v Canada (Minister of Cit/ Imm) 1999 SCR [leading case] Facts: ! Appellant near deportation, request minister of immigration to use discretionary powers on H/C grounds to remain in Canada with 4 children/illness while applying for permanent residency. App denied. SC accepted there were sufficient reasons for decision: Significance: Identified 5 Factors to determine a general level of PF required: ! The nature of decision and process followed in making it ! The Nature of stat scheme ! Importance of decision to individual affected ! Legitimate expectations of parties ! Procedures chosen by tribunal. Context: In having decided a general level of PF exists, court will decide from a range of possibilities what specified procedures are required: notice, disclosure, opportunity to participate, hearing, oral/written reasons for decision, opportunity to give evidence. Ratio: !

Admin decision-making is now seen as falling somewhere on a spectrum between quasi-judicial and legislative decision making, with procedural entitlement varying according to the place on that spectrum. “Once an individuals, rights, privileges or interest are at stake- the duty of fairness applies and the question then becomes one of degree.

Step 3: Ask, whether board is so dependent on or connected to the government, that, if appointed, they cannot be perceived as being sufficiently able to make an independent decision. Here institutional independence is related to the concept of bias (NOT SO SIGNIFICANT**).

Intro to Substantive Review: Substantive review looks at the substance of the decision: the decision itself and not just the procedure that were followed. Step 1: Court asks themselves what the standard of review is appropriate? Key Case ! Dunsmuir v NB 2008 SC: RATIO: 2 Categories of SUBSTANTIVE REVIEW: (1) Standard of Correctness: (was it a correct decision, the same decision the court would have reached?) (2) Standard of Reasonableness: a more respectful/forgiving standard (did the tribunal’s decision fall within a range of reasonable alternatives?) Context: If deferential= reasonableness. If no deference shown= correctness standard Intra-vires: evolved into the present standard of reasonableness: that is, a reviewing court will only overturn a tribunal’s decision if it is unreasonable o Ultra-vires: evolved into the present ‘correctness’ standard: that is, the court will only overturn tribunals decision if it is not what court itself could have decided. o

Step 2: having determined the standard, the court then applies it to the decision in question. Context: Having determined standard, it may determine that in review the decision, the standard has been met = The decision is the same as what would be reached by court, thus, decision will not be overturned. Del Vecchio v Canada (Public Safety) 2011 FC: FACT: Decision to transfer prisoner from US to Canada made by Minister of Public Safety, in the negative. HELD: FC found a high degree of discretion was provided via statute thus, Minister was owed deference (applying a reasonableness standard). But by arbitrarily allowing A’s accomplish transfer, the minister was outside his jurisdiction. (thus same decision would not have been reached by courts)

4"

"""""""""""""4"

"""""""""""""" 4"

5"

"""""""""""""5""

"

"""5"

" The RULE OF LAW (RoL) and the Administrative State: The preamble to the constitution recognized the principle that government should be subject to law Reference Re Secession QB 1998 SCC. !

Van Harten: argues that an important function of ADMIN LAW, is the maintenance of the RoL (courts being at center)

!

This is demonstrated by the fact that contemporary admin law reflect Dicey’s RoL: 1. no one should be made to suffer except for a distinct breach of law 2. government and citizens alike are subject to the general law of the land 3. law of government should be administered in the ordinary court Dicey asserts: There is no distinct body of public law applying to relations between individuals and state that is administered outside of the ‘ordinary courts’. This ultimately provides justification for the exercise of the s.96 Courts in JR, even when legislature have used privative clause.

! !

Functionalist Criticisms: o Argue that Dicey’s understanding of the role of s.96 courts could only frustrate the implementation of legislative arrangements for regulation and redistribution in the public interest. o Argue: Dicey’s version of the ‘rule of law’ put’s public administration into a straight jacket. o ARGUE: More likely that GOV, in face of obstruction from economic vested interest, would take course of least resistance by curbing the effectiveness of public programs rather than risking judicial reproach in the name of private rights. Positivist legal tradition has failed to appreciate that law is intertwined with policy! o Functionalist approach= stresses the facilitative and legitimizing roles of law- as regulator and provider of benefits, state should be regarded as a source of good law. David Dyzenhaus 2002: • Functional approach attaches insufficient weight to considerations of democratic accountability and fundamental rights as to the positive contribution courts can make to realizing these goals • HOW" Rework Functionalist Approach to RoL in order to provide for law of JR in advancing these values in contemporary admin state: (1) With the apparent dissolution of public confidence in the capacity of the political process to exercise democratic control over operation of the government, it is appropriate for admin law, via JR to ensure procedural openness and enhance accountability in public admin (2) While reviewing courts should normally show a measure of deference to a specialist agency’s interpretation of its enabling statute (3) Agree with functionalist, that the most reliable guide to the ‘intent of the legislature’ is an interpretation that best furthers the purpose of the statute (a matter the agency will often be better placed to determine then a reviewing court) • My argument: mix of both is best!

5"

"""""""""""""5"

"""""""""""""" 5"

6"

"""""""""""""6""

"

"""6"

"""""""""""""6"

"""""""""""""" 6"

" END OF CHAPTER

6"

7"

"""""""""""""7""

"

"""7"

" 2. PROCEDURAL FAIRNESS MATERIALS

S & F, chapters 5, 6, 7, 8 and 12 (procedural aspects of FJ)

1) Different Sources of Procedural Fairness: We begin with procedural obligations that administrative decision-makers must observe in exercising their powers. The starting point is understanding where these come from: ENABLING STATUTE: • To determine whether it is required by law to afford procedures and if so, which ones, Courts look at enabling statutes: Singh v Canada (MEI): Significance: IMM Act provided a complete procedural code governing refugee status determinations, thus displaced CL duty of fairness. SUBORDINATE LEGISLATION (Admin policy/practice) • Leg may choose to statutorily delegate to EXE, minister or board itself, the power to enact regulations/ rule of procedural requirements (because of expertise) • Issue: delegated rule makers are not respecting the wishes and expectations of the delegator’. To minimize this risk, delegated legislation is subjected to various mechanisms of accountability and scrutiny: such as public consultation or judicial review where statutorily prescribed mandatory steps for the effective enactment are not followed. POLICIES/ GUIDELINES: • Public authorities will issue guidelines and policies. It is a form of soft law that need not be provided for in the authorities enabling statute. • They play a dominant role in public authorities decision making • Example: Baker ‘H&C Guidelines relied on GENERAL PROCEDURAL STATUTES • General procedural statutes which constitute an additional source of procedural requirement: Ontario Statutory Powers Procedures Act (SPPA) 1990: ! Feature: most detailed stat codification of procedural safeguards, 1994 amendments made that expressly empowered tribunals to make general rules governing their practice/procedure....