Talk:Canadian administrative law

Request to revamp article

Everything in this article is outdated. I want to thoroughly revamp and update this article, and I seek blessings from fellow wikipedias before conducting this surgery HollerithPunchCard (talk) 14:03, 30 July 2021 (UTC)

Article Quality

This article needs some severe editing - it's full of law student notes (which understandably is the major source of contributions) which are not encyclopedic. If you need to add things, try to fit it in the context of the article rather than adding various approaches to the same thing written in different formats. --Unavoidable (talk) 15:04, 22 March 2012 (UTC)

Canadian Administrative Law Summary

Admin Law is an exercise in issue spotting and addressing only those issues. Step 1 : Identify Issue. Step 2 : Address with relevant case law Step 3 : Apply case law to facts Step 4 : Conclusion - Use case law – statute – Analogise between case law. - Use case law wording Challenging Admin Law Decisions 1. On the basis of procedural deficiencies 2. Substantive review (Error of Law – Fact or Mixed) • 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 • There are three grounds upon which a court may review an administrative tribunal’s decision:

1. Procedural deficiencies 2. Substantive Review (Error of law or fact or Mixed Error of Law and Fact) • Judicial review of Ontario bodies is governed by the Judicial Review Procedure Act and the Rules of Civil Procedure • 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 • 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) c) Only decisions with an element of finality can be reviewed

1. Procedural Deficiencies There are two categories within the procedural realm: a) Natural justice – More Serious Proceedings b) Fairness – Less Serious Proceedings The two categories, however, should not be divided rigidly and generally overlap (Martineau) • Procedural entitlements do not apply to cabinet decisions and policy decisions unless the policy decisions have implications for a limited group of people (Bezaire) • Application of procedural entitlements can be thought of as lying on a spectrum with cabinet & broad policy decisions at one end and individualized decisions at the other end. Cabinet / Legislative Broad Policy Narrow Policy Individualised Decisions (No challenge unless violates Consti - Not open to JR – PF is warranted – Very much open to JR) Natural Justice • applies when proceedings are can classified as either judicial or quasi-judicial in nature • Factors suggesting that proceedings are judicial or quasi-judicial in nature: a) Hearing contemplated b) Affects rights and obligations of persons c) Adversarial process – Where there are arguments / counter arguments d) Obligation to apply substantive rules to individual cases

• Content of natural justice: 1) right to be heard and 2) right to an impartial decision-maker (Bias – Personal – Vested Interest – Institutional Bias..Baker – Institutional Decisions…National Energy Board Case • 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 • 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) and only applies to provincial. • 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 • SPPA does not mandate Oral Hearing.

Fairness

Max PF------------------------------------------------------------------------------------------------------------------------Min PF

1. See where your Question fact pattern lies 2. See what you got from the decision maker 3. Think about what you should have got? 4. Identify the deficiencies and challenge on the basis of those deficiencies by way of JR.

Ask what is the nature of the issue?

1. Is it serious – Eg : Deportation to face capital punishment – MAX PF REQD 2. Is is minor - $10 fine for not cleaning up after your dog – MIN PF REQD. • Fairness applies in non-judicial and non-quasi-judicial contexts • Leading decision within the fairness context: Nicholson • Elements of fairness:

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

Factors affecting the duty of fairness (from Baker): - Fairness Analysis

a) Nature of the decision – Judicial or Quasi-Judicial b) Nature of the statutory scheme and terms of the statute pursuant to which the body operates . Is it final . Is there an appeal? c) Importance of the decision d) Legitimate expectations - Expectations set previously e) Choice of proceedings made by the tribunal – Will be taken in account f) Charter – s.7

2. Substantive Review - Error of Law and/fact

• 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 • Spectrum of standards: reasonableness and correctness (Major / Consti Q of Law – Dunsmeir) • Previously there was a third standard, patent unreasonableness but it was recently discarded by the Supreme Court in the Dunsmuir decision • Reasonableness is the more deferential standard while correctness is the less deferential (Court’s willingness to review is high) • Factors affecting choice of standard of review analysis (Baker and Dunsmuir):

a) Privitive (Finality) clause – Pushes towards more deference b) Expertise – How complex is area of law being dealt with – More complex more deference. c) Interpreting one’s own statute d) Purpose of the statute as a whole and of the provision in particular – Decision individual or broad. If Individual – Less Deference , If Broad – More Deference e) Nature of the error – Of Law / Fact or mixed Law – Less Deference, if Fact..More Deference

Discretionary Decisions

• Substantive review is available even in the context of purely discretionary decisions. • Discretionary decisions will typically attract more deference. • Discretionary decisions must be made within the decision-making framework established by the statute pursuant to which a decision is made. Questions to ask are: What is the purpose of the decision? What is the statute trying to accomplish (Intent of Legislature)

Remedies

1. Prerogative Writs a) Mandamus: compels performance of a legal duty b) Certiorari: the power to quash or set aside the decision of an administrative actor – Most sought 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

2. Equitable remedies: FCA S19 (1) (a) JRPA 2 (1) a) Declaration – Of a legal position b) Injunction – Restraining c) Interim relief – Stay of proceeding until JR is done.

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): ‘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? Ha there been a breach of procedural fairness?

Held: Appeal granted; sent back to refugee board for determination. 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

Dunsmuir v. New Brunswick, 2008 SCC 9

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 reasonabless. 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 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.

Grounds of Review Chart

Note: only saved here for review. Not sure why this was on the article in the first place

There are two grounds for reviewing an administrative tribunal decision:

1) Procedural (Martineau)

• Natural Justice

-applies to judicial/quasi judicial context

-right to notice/be informed

-impartiality and bias

Bias: personal, institutional, institutional decision

• Fairness

-applies non-judicial context

-Nicholson

-elements: right to know case, right to make choice made by tribunal submissions, reasons of decision maker

-Factors affecting duty of fairness (Baker):

1)Nature of decision

2)Nature of Statutory scheme

3)Importance of decision

4) Legitimate expectations

5) choice made by tribunal

6) Charter S. 7

-Knight

2)Substantive Error (law/fact/mixed)

-Ask if an error of law or of fact or mixed

- what is the standard of review? (Dunsmuir) (Knight)

-Either:

Correctness- less deference

Reasonableness – more deference

-Factors affecting choice of standard: (Dunsmuir, Baker)

1) Privitive clause (Could lean towards reasonableness)

2) Expertise

3) Interpreting Statute

4) Purpose of Statute

5) Nature of error

a. Law – less deference

b. Fact – more deference

-Also: Discretionary decisions which typically attract more deference

Procedural Fairness

1) Was the person owed procedural fairness? Identify the trigger for procedural fairness originating in Knight

2) examine the content of procedural fairness with reference to the variables in Baker

3) natural justice and two important elements set out in Nicholson

4) go through rules of procedural fairness and see if apply

5) does the SPPA apply? Federal? provincial?

6) was there bias?

7) effect of breach of procedural fairness

8) what remedies are owed — Preceding unsigned comment added by Unavoidable (talk • contribs) 15:09, 22 March 2012 (UTC)

Procedure for Judicial Review

First Step

Ask: Are there discretionary reasons why the case should not be allowed to proceed to judicial review? Is there an alternate remedy? Look at the legislation to see whether it is Federal or Provincial. Overall, courts will deny an application for judicial review when alternative procedures are available. However, under s. 2(5) of the Judicial Review Procedure Act a court can still grant relief.

Second Step

Ask: What standard of review should the courts apply? This can be answered by looking at past case law. Starting with CUPE v. New Brunswick Liquor Corp. which introduced the 'Pragmatic and Functional approach' which consisted of three standards: correctness, reasonableness and patent unreasonableness . Subsequent cases reaffirmed this such as Bibault and Southam. The 'Modern Standard' of review was then approached in Pushpanathan v. Canada (Minister of Citizenship and Immigration) which was affirmed in Baker. Recently there has been a new approach in Dunsmuir v. New Brunswick where the Supreme Court eliminated 'patent unreasonableness' consequently leaving only correctness and reasonableness. The standard of review analysis must be analysed before judicial review.

To determine whether deference is owed to a decision, one must then look at the four factors mentioned above, namely: 1) Is there a privative clause or a right of appeal? 2) What is the level of expertise? 3) What is the purpose of the Act as a whole and the provision in particular? 4) The nature of the problem (question of law or fact)? Once a court has looked at these four factors, then they can apply one of the two standards of review - Correctness (no deference) or Unreasonableness.

Third Step

Ask: Did the administrative body abuse or misuse their discretion? This can be answered by examining the factors determining the scope of the administrative bodies discretion: Expertise; nature of the decision; language of the provision and the legislation; whether the decision is polycentric; intention revealed by the statutory language. When there is more discretion left to the decision maker, there more reluctance for the courts to interfere.

Adding to this, is to ask: What type of abuse? This can be answered by looking at the Grounds for Review of abuse of discretion. As well as the question of is there delegated legislation and whether it is an unreviewable discretionary power (e.g. privileges - not reviewable; prerogative powers - reviewable)

Fourth Step

Concerns the duty of fairness. (As mentioned above) There are two components to the duty of fairness: participatory rights and protection against bias.

Participatory rights - Should a duty of fairness be imposed? While in Cooper the courts recognized the duty of procedural fairness is not limited to the judicial process, they retreated from this proposition until it was resurrected in Nicholson and Knight. The fact that a decision is administrative and affects 'the rights, privileges or interests of an individual' is sufficient to trigger the application of the duty of fairness (Cardinal). As well, the fact that a decision maker does not act judicially does not mean that there isn't a duty to act fairly (Martineau). Subsequently, does it pass the threshold of procedural fairness? There are three factors for the existence of a general duty (Knight, as cited in Cardinal) 1) nature of the decision to be made; 2)relationship between that body and the individual; 3)effect of that decision on the individual's rights. There are some exceptions, one being in the case of emergencies. (Also, here one would see if the Statutory Powers Procedure Act would apply if in Ontario which you could apply a four part test: 1)Is there a statutory power of decision being exercised?; 2)Whether the empowering legislation expressly includes or excludes the SPPA (or relevant legislation); 3)Whether the tribunal is excluded under s. 3(2); 4) If the entity is not expressly excluded, whether an oral hearing would be required otherwise by law? (The SPPA will only apply if an oral hearing is required by law)Was notice given? Is discovery an issue? Is delay an issue? What is the type of hearing they are seeking? Such as an oral hearing (see Khan)where the right to an oral hearing is the highest when credibility is in issue. As well participatory rights are not going to ensure an oral hearing in every issue (Baker). Is the right to counsel in question? Is there a requirement for reasons to be provided?

Protection against bias - This is the second fundamental principle of procedural fairness - the affected parties have the right to a bias free decision. There are two types of bias: 1) Direct or pecuniary and 2) Reasonable apprehension of bias. The test for this is: What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude? (National Energy Board). Factors can include: Kinship, friendship, partisanship. Whether or not there is an apprehension of bias may depend on the degree of deference afforded a particular administrative actor.

References