Administrative Law •
Administrative law deals with all the various administrative tribunals to which the Provincial and Federal governments delegated various powers to carry out numerous mandates
•
Admin law establishes the circumstances in which the decisions of administrative tribunals will be judicially reviewed
Under what circs can cts intervene in the decisions made by these various tribunals: a. Tribunals decision making power must be somehow be constrained – 3 ways: i. The constitution ii.Statutes 1. Allow for the tribunals to come into existence and gives them 2. Set certain limits on their decision making powers 3. Every ? on the exam you must start with the statute as the statute first and foremost sets limits on the tribunals decision-making power a. Understand the provisions under which the trib is making decisions under 4. Admin law gives us the tools iii.Common Law 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. 2. Unreasonableness- An administrative agency’s interpretation of ambiguous language of the
enabling legislation must be reasonable. 3. Unconstitutionality-must not breach a provision of the constitution. The standards imposed by
the constitutional law are informed by previous experience at the level of administrative law. Nonconstitutional standards to which the public administration is held through legislation and the common law reflect the constitutional values and principles emerging from Charter legislation. 1
Fairness Sources Steps 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. 2. Subordinate Legislation: Administrative Policy and Practice- Rather than prescribing
specific procedures in an administrative board’s enabling statute legislatures may choose to statutorily delegate to the executive- the lieutenant governor in council, an individual minister or the board itself- the power to enact regulations or rules that establish procedural requirements. 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 2) Substantive Review - Error of law or fact-Ability to challenge a decision on the basis
that they made an error in interpreting the law, fact or mix of the two ii.Jurisdiction issues rise under substantive review •
Judicial review of Ontario bodies is governed by the Judicial Review Procedure Act and the Rules of Civil Procedure 2
•
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
Admin law points 1. JR of Admin decisions of Ontario bodies is governed by the JR Procedure Act and the rules of civ pro a. Lays out rules for filing applics, etc. b. Lays out remedies 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 •
Availability of judicial review: a) Only public action can be reviewed (FCA s.2(1), JRPA s.1) 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
1. Procedural Deficiencies (every decision which is made is done by procedure...things
have to happen before the decision is made.) 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 3
•
applies when proceedings are can classified as either judicial or quasi-judicial in nature
•
Factors suggesting judicial or quasi-judicial in nature: Coopers v Lybrand casea) Hearing contemplated b) Affects rights and obligations of a person c) Adversarial process- 1 party up against next d) Substantive rules applied to individual cases- obligation to apply substantive rules to
many individual cases rather than making policy or policy like decisions.
•
Content of natural justice: 1) right to be heard and 2) right to an impartial decisionmaker (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-
1) Right to be heard includes:
•
the right to prior notice of a proceeding
•
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
•
Notice must have sufficient information
•
The notice must also disclose the real intention of the decision-maker
•
The form of the hearing depends on the context
•
In Ontario the rules of natural justice are codified in the Statutory Power Procedure Act (SPPA)
•
The SPPA applies when a hearing is contemplated
•
The SPPA may be supplemented by the common law
•
Federally there is no equivalent to the SPPA and, thus, the common law applies in this context 4
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-no personal bias -no institutional bias *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 b. SPPA only applies if a hearing is contemplated i. Not every stat will explicitly tell you whether a hearing is contemplated ii.If the statute is silent, you have to go to CL rules to determine if a hearing is warranted in the circs c. SPPA does not necessitate an oral hearing d. Look at the SPPA when dealing with an Ont decision, but then look at the CL – 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 i. Stat framework is structured in such a way that bias is a byproduct of the structure ii.Eg. stat allows the same people who entered the evidence were then the ones who make the decision iii.Could the framework result in a decision that is made on something other then the merits of the case Institutional decisions a. Delegating decisions to subordinates can be done as long as the statute 5
allows you to delegate Overall test for biasNational 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
*keep in mind- 1)spectrum (extreme?) 2) procedure- right to make a submission, right to a lawyer, council, things which constitute procedure- pre-cede making decision. *problem questions- state tribunal granted x but should have been given y- more serious
• Fairness applies in non-judicial and non-quasi-judicial contexts • Leading decision within the fairness context: •
Nicholson v Halimand- Norfolk Regional Board of Commisioners of Police [1979]case (constable discharged from board w/o being given an opportunity to make submissionssought review and succeeded)
• Monetary remedy
•
Elements of fairness: - see p 92 3 req
a) The right to know the case to meet b) The right to make submissions c) Reasons for a decision depending on the importance of the decision
6
*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)
a) Nature of the decision
(if judicial or quasi judicial-should be granted with more procedural protections)Coopers and Lybrand case 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) c) Importance of the decision- (importance of right affected)
(the more important- potential consequences the more procedural protection) d) Legitimate expectations – tribunal reasonably expected to follow what it did in past-
cannot be used with regard to policy decisions (Reference re Canada Assistance Plan) (whether they were legitimately expected to induce entitlements- with respect to procedure only-not outcome)eg. Stat says u will get a hearing 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 Ct will defer to the tribunal somewhat but it is not determinative f) Charter – s.7 (influence on procedures significant right to life, liberty and security)-Charkaoui v Canada [2007] case •
Is the limit justified under sec 1 Oakes test
In the event that 1 or more of sec 7 rights implicated *conclude does have grounds to challenge* 7
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 factors above – what ought to be granted… then c. Compare what you think ought to be granted with what was granted d. If what was granted was less then what ought to have been granted then you may have grounds to challenge and have the decision quashed (or be entitled to some other remedy) 9. Procedure provides you grounds on which a decision made by a tribunal can be challenged and reviewed **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
Key thing with substantive review is FRAMING the ISSUE a. Is there an error of fact and or law b. And if there is, what the nature of that error is – ie, law or fact Distinction is often blurred c.Read what is in the statute and then read the facts isolate the decisions that were made in the case and then identify the stat provisions pursuant to which the decisions were made Then determ if there are sufficient facts to make out a challenge on the basis of procedure or that there is an error of law and or fact ii.Always start with the statute then go beyond that and look at the CL 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 8
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)
First question to ask in this context: what is the standard of review? •
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)
•
Spectrum of standards: reasonableness and correctness
2 standards of review: •
1)Reasonableness is the more deferential standard- less willing to review decisionunless unreasonable
•
(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
•
Page 821 must insert quote (Dunsmuir)
•
Page 848 quote
•
Go through standard of review factors below....
Apply P and G approach
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 9
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
•
Factors affecting choice of standard of review Analysis (Dunsmuir):used to be BakerDunsmuir altered test- always site cases
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) b) Expertise-how much expertise does tribunal have? c) Interpreting one’s own statute-in interpreting ones own statute and in dealing with
area of law d) Purpose of the statute as a whole and of the provision in particular-whether you
are dealing with specific party interest or go beyond people involved- wide range or just individuals? Deference if only effects the party in case- less deference if beyond parties in case. e) Nature of the error- establish what kind of error- whether error is fact, law or mixed
(misinterpretation)- decide reasonableness=fact or correctness=law
If error in law- courts are an expert in interpreting
10
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.
*could be procedure or substantive or both 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. Issues: What’s appropriate standard of review of labour adjudicator’s decision/authority under PLSRA wrt civil termination of servant/public officer (dismissible w/cause)
Held: Appeal from NB CA dismissed. The standard of review is reasonableness. The adjudicator’s reading of the PSLRA, which allowed him to inquire into the reasons for discharge, or impose a duty on ER to show cause before dismissal, was unreasonable and inconsistent w/employment contract, under which the employment relationship was governed. The combined effect of ss. 97(2.1) and 100.1 of the PSLRA cannot, on any reasonable interpretation, remove the ER’s right, under contract, to terminate EE with reasonable notice or pay in lieu thereof without asserting cause. Contrary to adjudicator’s decision, which McLachlin says was in error, on the merits, D wasn’t entitled to procedural fairness above the contractual rights. Where a public 11
employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law.
*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 circumstances where a duty of fairness would still apply: 1) Public employee not protected by contract (judges, ministers, constitutionally defined roles) 2) Office holder is subject to summary dismissal 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 Abuse of discretion- decisions made on basis of irrelevant considerations- ignore relevant considerations- know whats relevant by looking at the enabling statute- must look to enabling statute objective and purpose. Has tribunal member considered objective and purpose of what the purpose of statute is?
Jurisdiction- substantive issue- are you operating within the given/granted to your boundariesstatute outlines. Push towards correctness standard invariably if jurisdiction issue. 12
Remedies (codified in statute- JRPA sec 2, CAS 18.1(3)
a) Mandamus: compels performance of a legal duty b) Certiorari: the power to quash or set aside the decision of an administrative actor c) Prohibition: enables a court to prohibit a proceeding, decision, or act 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
Baker [1999] 2 SCR 817 (Can) Facts: Order to deport B from Canada after 11 years in the country (illegally). Jamaican citizen applying for exemption from requirement to apply for permanent residency from outside Canada based on humanitarian and compassionate grounds. [S. 114(2) Immigration Act] – separation from Canadian born children. Discretionary decision by immigration officials whether to allow B to remain on H &C grounds. B suffered from mental illness and had had four children in Canada. Application for exception from deportation denied by officer Caden on advice from (junior) officer Lorenz.
She was provided w/ Lorenz’ notes (below): 13
‘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 – Letter of Aug. ’93 from phychiatrist from Ont. Govm’t. 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! he PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region. 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?
Held: Appeal granted; sent back to refugee board for determination. 14
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. Standard of review = reasonableness: •
Apply P & G approach: • no privative clause; limited right of appeal—statute calls for deference • Expertise: ‘some expertise’ of minister in immigration matters; neutral, b/c courts may have more expertise in HR • Nature of Q: The legal principles are relatively open textured, and involved decisions to exempt people. It was an individualized, fact-based decision affecting the rights of individuals relative to the state. Decision turned on the facts of a persons’ case, and not stat. interpretation; High level of discretion delegated by Parliament (high deference), but with great significance for individuals (low deference)=middle standard of reasonableness
Duty of Procedural fairness, 5 non exhaustive factors 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
15
16
