Foundations Exam - Municipalities 1 PDF

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Tesla Motors Canada ULC v. Ontario (Ministry of Transportation) Justiciability of executive government decisions Justice Myers noted that executive government actions exist along a spectrum ranging from “high policy” (e.g. declaring war) which is not justiciable, to more mundane executive decisions which aect “the rights or legitimate expectations of an individual” (e.g. issuing a passport) which are justiciable. In the latter cases, the Court will review the action where it has been taken “for improper reasons or without aording the applicant procedural fairness”. In this case, no party argued that the subsidies could not be cancelled. This was “high policy”. Rather, Tesla’s concern was it that it had been directly targeted in the implementation of that cancellation for improper purposes. Justice Myers then focused in on the issue of “improper purpose” and harkened back to a cornerstone case in Canadian administrative law: Roncarelli v Duplessis, [1959] SCR 121. In that case, the Premier of Quebec, Maurice Duplessis, had intervened in a liquor license proceeding in order to deny an applicant a license simply because he was a Jehovah’s Witness. Justice Myers quoted Justice Rand’s decision: “Discretion” necessarily implies good faith in discharging public duties In other words, courts will ensure that discretion by public authorities is exercised in accordance with the statutory purposes for which the discretion was created. Discretionary decisions that impact the rights and reasonable expectations of people and businesses must be connected to the statutory purpose under which the decision is being made. If a Minister makes a decision which aects you personally, that decision cannot be based on irrelevant considerations.

Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761 There was no infringement of s. 2(b) rights. Or there was infringement, but it’s saved by s. 1. The court found that the Province’s reduction of the City’s 45 seat council election to 25 seat that was already partway through the election, was purely a “political matter,” in which the Court had “no legitimate basis” to intervene and held that unwritten constitutional principles could not be used to invalidate the legislation. The change to the City Council structure did not prevent candidates from communicating their political messages; it only reduced the relevance and eectiveness of a candidate’s “past communications”—thus, there was no infringement of their s. 2(b) rights

Majority ONCA: That “political expression during an active municipal election consists of far more than the pursuit or casting of a ballot on voting day” Dissent: “is not simply the right of candidates and the electorate to express views and cast ballots. It expands to encompass a framework for the full deliberative engagement of voters, incumbents, new candidates, volunteers, donors, campaign organizers and staff, and the media, throughout a pre-determined, stable election period” freedom of expression should protect this range of expressive activities from “mid-stream election interference” The minority found that the BLGA’s s. 2(b) violations could not be upheld under s. 1 of the Charter, as there was no pressing and substantial objective that necessitated the change to City Council partway through the election The majority’s imposition of a dichotomy between expression itself and the effectiveness of the expression seems to be problematic—in the electoral context in particular, as the minority noted, it seems implausible to neatly separate expressive

activities from their efficacy. What is the protection of 2(b) protection in an electoral context?

The majority’s imposition of a dichotomy between expression itself and the effectiveness of the expression seems to be problematic—in the electoral context in particular, as the minority noted, it seems implausible to neatly separate expressive activities from their efficacy. Generally, Canadian jurisprudence has refused to invalidate legislation based solely on unwritten constitutional principles (see, for example, Imperial Tobacco, 2005 SCC 49, or the more recent Quebec v Canada, 2015 SCC 14), though some prominent cases do allow for the possibility. Most famously, the Reference re Secession of Quebec, [1998] 2 SCR 217, explains that while unwritten constitutional principles could not take precedence over the written text of the Constitution, in some cases, “[u]nderlying constitutional principles may in certain circumstances give rise to substantive legal obligations…which constitute substantive limitations upon government action”

Diversity of courts Sonia Lawrence asks, “could a judiciary homogenous in terms of race and gender also be an independent judiciary?” and answers that judicial independence may require a bench which “reasonably reflects the diversity of the society which it serves”.

Will a more diverse judiciary make a dierence to substantive decision making? Representativeness: the notion of a judiciary which represents or reflects the community it serves. Why? Judicial independence - the “cornerstone of democracy” - is described as dependent on a wide variety of conditions, including judicial remuneration, court budgets, the discipline of judges, politics and the appointments process, but these do not usually include a diverse judiciary. -sonia lawrence

Increased legitimacy of judiciary if it is representative of society. If judiciary remains entrenched in structures, traditions and a professional culture that keeps it increasingly irrelevant to the people it serves, there will be a loss of trust If judges share a similar background, they cannot provide a dierent side to the debate/cannot give insight into how x may aect minorities or women, no matter their expertise Dworkin’s Herculean judge does not exist. There is a life experience that goes behind every judgment: -woman that made decision on abortion case -pakistani flight pilot case, islamophobia was not mentioned

-vastly dierent life experiences “The significance of diversity is heightened (and the empirical evidence is even more clear) when we look at appellate courts sitting as panels, where judges must deliberate and craft decisions as a group.” -sonia lawrence

Obstacles: persistent structural inequalities. Traditionally law has been a profession dominated by white men. Will diversity aect judicial reasoning? Should it? - legal system = historically very patriarchal institution - feminist judges might make a substantial dierence to judicial decision-making (in terms of reasoning, not the final judgement

Cons: - one school of thought is that judges’ life experiences should not influence decisions. judges are supposed to be neutral. judges must adhere to analogical reasoning and precedent. Linking diversity on the bench to judicial independence, on the other hand, would suggest that we have not truly had judicial independence in the past, since historically it has been undeniably a homogenous bench – at least in terms of race, ethnicity and gender. -sonia lawrence

Conclusion: judicial independence is not a “goal in itself,” but rather a means to impartiality and legitimacy -sonia lawrence

‘a judiciary with a diversity of experience … is more likely to achieve the most just decision and the best outcome for society’ Sonia Lawrence cites a U.K. study found that significant numbers of minorities said that increased numbers of ethnic minority personnel (not limited to judges, however) would enhance legitimacy of, authority of, and confidence in, the courts Improving appointments is one thing that can be done to foster a truly inclusive society. Shared Meaning Rule – the rule is that there is no rule that is more authoritative than the other. It just happens to be a matter of strict construction. Then it is applied to the other version as well. It helps with figuring out the meaning when it is ambiguous. The modern approach is saying that it is not the consistent way of figuring out the way between French and English.

10. Constraints on Legislative and Administrative Action

Audrey Macklin One of the interveners advanced the argument that we don’t need a standard of review analysis, and that other common law jurisdictions apart from the US (eg. UK, Australia, NZ) got along quite well without one. Well, one of the judges retorted, that’s because they persist in a classically Diceyan view of the rule of law that regards administrative tribunals as truly inferior in all respects. Naiomi Metallic Here, I argue that administrative law rules that have developed around deference tend to place Indigenous peoples at a disadvantage in judicial review proceedings. The overall purpose of administrative law is to “assure the proper functioning of the machinery of government” (Martineau v Matsqui Institution) and hold government actors accountable to the “rule of law, … fundamental values of Canadian society, and the principles of the Charter” (Baker). However these legal frameworks almost inevitably tend to be skewed to the interests and goals of settler Canadians over those of Indigenous peoples. The playing field is thus already uneven, and a starting point of deference can tip the imbalance even further. application of the Doré/Loyola justification test reveals that a fair balancing for Indigenous people is difficult where legal frameworks vests all lands and control in the province. The situation is arguably even worse when there is no legislative framework and the government instead ‘regulates’ via policy. There are many instances where the federal government has declined to legislate over First Nations and instead exercises its jurisdiction through policy manuals. ‘reconciliation’ and this should be consistent with how the term is defined by the TRC as “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country” (at 7-8). Such directives in legislation would make it beyond debate that decision-makers are required to consider Indigenous interests any time such interests are affected by administrative action.

Vavilov Against this unpromising backdrop the Supreme Court set out in Vavilov to provide “better guidance…on the proper application of the reasonableness standard” Remitting the matter will “most often”156 be the appropriate course of action, as “the legislature has entrusted the matter to the administrative decision maker, and not to the court, to decide”

Whilst correctness remains the standard on constitutional questions

Doré v Barreau du Québec is an administrative law decision by the Supreme Court of Canada regarding how to apply the Canadian Charter of Rights and Freedoms to adjudicative decisions, as opposed to statutory law. The Court found that the test in R. v. Oakes (which is used to determine whether a law that infringes a section of the Charter is unconstitutional under section 1 of the Charter) does not apply to administrative law decisions, although there is "conceptual harmony" between the review for reasonableness and the Oakes framework. Instead, the question is whether the administrative decision is reasonable, in that it reflects a proportionate balancing of the Charter rights and values at play.

Reference Re Manitoba Language Rights The Court found that the Constitution Act, 1867 , and the Manitoba Act, 1870 , did require both languages and that those laws that were not in both languages were of no force and effect. However, they were deemed temporarily valid for a time until translations could be re-enacted in order to avoid a legal vacuum in Manitoba and to ensure the continuity of the rule of law. This reference was the first time that the courts in Canada had used the remedy of a delayed declaration of invalidity. Despite its exceptional origins, this remedy has grown to become a preferred one in Canadian public law.

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Manitoba was given a generous period of time to translate the laws

and, in 1992, the court was still extending this grace period to be decided by the parties.[2]...