ADMIN LAW OUTLINE
Part I: Introduction 4
The Administrative State and Rule of Law 4
General Purposes of Admin Law 4
Admin Law v. Constitutional Law 4
Who are ADMs 4
Why Independent ADMs Exist 4
Advantages of ADMs 5
Non-Judicial Mechanisms for Control of Gov Powers 5
Judicial Mechanisms for Control of Admin Actions 5
Primary Grounds for JR 5
Rule of Law vs. Functionalism 6
The Constitutional Basis for JR 7
Intro to JR: Baker 7
Baker (1999, SCC) 7
Part II: Procedural Review 9
Introduction 9
Rationales for PF 9
Sources of PF Obligations 9
Interaction Between Sources 9
The Historical Development of CL PF 9
Natural Justice 9
Early English Common Law 9
Later English CL: Restrictive Approach 9
Development of Duty of Fairness Approach – Less Restrictive 10
Expansion of Procedural Obligations in Canada 10
Nicholson (SCC 1979) Canada adopts duty of PF for admin decisions; implies difference bw PF and NJ 10
Development of Modern Approach to PF 10
Inuit Tapirisat (SCC 1980) If the decision is legislative & general in nature PF does not apply. 11
Winneke (Australia, 1982) Australia Cabinet decision found NOT to be legislative 11
Homex (SCC 1980) Legislative decisions are NOT immune from PF if they are individualized in substance 11
Regulated Importers (FCTD 1993, FCA 1994) Serious impact on small group FC – yes PF, FCA – no PF 11
Re Abel (ONCA 1979) PF found to apply at preliminary stage b/c of proximity b/w stages 12
Irvine (SCC 1987) Low PF required b/c early investigatory stage 12
Re Webb (ONCA 1978) PF triggered because of forfeiture of a real and substantial benefit 13
McInnes (1978, Eng Chancery) Classification of forfeiture, pure application, and expectation plus slur cases 13
Hutfield (1986, Alta QB) Denial of a doc’s application for hospital privileges à PF required 13
Lazarov (FCTD 1973) Denial of a citizenship application for security reasons à PF required; “slur” 14
Everett (FCA 1994) Refusal to renew a fishing license for past misconduct à PF required, “slur” 14
Desjardins (FCA 1983) Revocation of a pardon à PF required; forfeiture of an important status, slur 14
Mavi (SCC 2011) PF applies because there is some discretion in the statute 14
Legitimate Expectations Doctrine (LED) 15
Re CAP (SCC, 1991) LED is procedural only and can’t be used to fetter gov from enacting legislation 16
Baker (SCC 1999) LED never generates a claim to a substantive outcome, only hearing entitlements 16
Mount Sinai (SCC 2001) Discussion of LED 16
CUPE v. Ontario (Min of Labour) (SCC 2003) Must be a clear, unambiguous, unqualified practice or promise 16
Mavi (2011) LED invoked successfully because of wording in the undertakings signed by the sponsors 17
Constitutional and Quasi-Constitutional Procedural Protections 17
MacBain CBR applied to overrule statutory authorization defence in federal statute 17
Authorson (2003, SCC) The CBR is of no assistance in DM contexts that are completely legislative in nature 18
Singh (1985 SCC) Framework for a s. 7 analysis set out and applied; oral hearing where credibility at stake 18
Charkaoui (SCC 2007) How to deal with security concerns when s. 7 is engaged 20
G.(J.) (SCC 1999) S. 7 rights for a parent (security of the person); state-funded counsel, “mootness” 20
Blencoe (SCC 2000) What amounts to undue delay in CL procedural fairness 21
Determining Where Along the PF Spectrum You Are: Baker 23
Specific Content of PF 24
Re Hardy (BCSC 1985) Mass notice will suffice as long it comes to the attention of affected peoples 24
Re Central Ontario Coalition (1984, Ont Div Ct) If notice not accurate, it will be “inherently defective” 24
Ex Parte Taylor (1970 ONCA) Adequacy of notice will vary, consider expected knowledge of person involved 24
Chester (1984, Ont HC) Adequacy of notice will vary in terms of what the hearing is about 24
Krever Commission - Reflects how context-specific notice issues are 24
CALPA (SCC 1993) There must be express or implied authority in a statute for an agency to make a discovery order 25
Northwestern General Hospital - Unique human rights law situation; no privilege, disclosure jurisdiction upheld 25
Ciba Geigy - Different outcome than NW Gen Hosp re: disclosure; consider the CONTEXT (regulatory, economic…) 26
May v. Ferndale - Stinchcombe does not apply to admin processes, it’s principles might 26
Khan (ONCA 1997) When CREDIBILITY is at stake and it’s an IMPORTANT DECISION, oral hearing is necessary 26
Howard v. Stony Mountain Institution (1985, FCA) Applies the test for when you have a right to counsel 27
Kane (SCC 1980) PF violated if no disclosure and a serious interest is at stake 27
Re Napoli (BCCA 1981) Disclosure required b/c of nature of circumstances; need info to adequately respond 27
Charkaoui #2 (SCC 2008) Disclosure vs. national security, content of PF (under s.7) varies 28
Innisfil (SCC 1981) CE allowed because of statutory wording 28
MacLab Enterprises (ABCA 1971) CE is to counter information given to the DM; consider other means 28
Baker (SCC 1999) Entitlement to reasons and adequacy of reasons depends on the context 29
Lake (2008, SCC) Consider whether “purpose” of reasons is met. Ministers not held to the same standard as judges 29
VIA Rail (FCA 2001) Reasons given were “overbroad” and thus inadequate 29
Remedies & Remedial Discretion 29
Zahab (1991, Ont Div Ct) Even though an appeal de novo was proceeding concurrently, court granted JR 29
Harelkin (SCC 1979) Factors to consider re: adequate alternative remedy 30
Cardinal v. Kent Institution (SCC 1985) Futility argument 30
Lakeside Hutterite Colony v. Hofer (SCC 1992) PF required even if the ultimate conclusion would be the same 30
Mobil Oil (SCC 1994) Exception to the Futility Rule where BY LAW the outcome MUST be the same even w/PF 30
Nemo Judex In Sua Causa (Bias) 31
Baker (SCC 1999) Affirmation of the RAOB test from Committee for Justice and Liberty; bias found 31
R.D.S. (SCC 1997) Judge NOT found biased after statements made about race & POs 31
Moreau-Berube (SCC 2002) Derogatory comments by a judge (+ apology) found to lead to a RAOB 31
Bennett and Doman (BCCA 1993) Indirect pecuniary interest when competitor is a d-m 31
Marques v. Dylex (Ont Div Ct 1977) Association between party and d-m 32
Yusef (Man CA 1967) Personal animosity case 32
BC Nurses Union (BCCA 1977) Prior involvement, new panel needed, issue of credibility 32
Township of Vespra (Ont Div Ct 1983)Prior involvement, new panel needed, statements + refusal of evidence 32
Committee For Justice and Liberty (1978, SCC) Prior involvement case, RAOB 32
Wewaykum (2003, SCC) Prior involvement case: application of the two-part test; RAOB NOT found 33
Brosseau (1989, SCC) There can be overlapping functions (no RAOB) if statutory authorization 33
Quebec Inc. (1996, SCC) Overlapping functions case: “institutional impartiality” test 33
Bell Canada v. CTEA (2003, SCC) Gov can make regs, appear before AT interpreting those regs w/o RAOB 34
Paine (ONCA 1980) Attitudinal bias case: in this case context allowed for tolerance of opinions from d-ms 34
Gale Case (1993, Ont. Div. Ct) Attitudinal bias: involved with a similar case as a complainant 35
Large (1992, Div. Ct) Attitudinal bias case: strong views do NOT automatically create a RAOB 35
Energy Probe (1984 FCA) 35
Imperial Oil (2003, SCC) Pecuniary interest case: do a contextual analysis 36
Pearlman (SCC 1991) Can argue an INDIRECT pecuniary interest and then apply the RAOB test 36
Burnbrae Farms (1976, FCCA) Statutory scheme can preclude RAOB; pecuniary interest; institutional bias 36
Moskalyk-Walter (1975, Ont Div Ct) Pecuniary interest prevents peers sitting on AT 36
Matsqui (1995, SCC) Indirect pecuniary interest too remote 37
OSBRA (1990, SCC) Relaxed standards test for Municipal Councillors 37
Save Richmond (1990, SCC) Application of the “relaxed standard” test 37
Newfoundland Telephone (SCC 1992)Relaxed standard: use “bifurcated approach” for policy-oriented ATs 38
Pelletier (2008, FCTD) RAOB found in the sponsorship scandal inquiry; regular test used because of the context 38
Independence 38
Matsqui (SCC 1995) Lack of institutional independence found wrt AT 38
Quebec Inc (1996, SCC) Security of tenure and institutional independence both found 39
Ocean Port Hotel (2001, SCC) Statutory authorization provided a complete defence 40
Sethi (1988, FCTD) (Not on exam!) 40
The Legal Effect of Bias 40
Retired Judges (2003, SCC) Statutory authorization can be trumped by rights documents 40
MacBain (1985, FCA) Prior involvement; Statutory authorization can be trumped by rights documents 41
Part III: Substantive Review 41
Introduction to Substantive Review 41
Privative Clauses 42
The Development of the Law 42
Stage 1: Pre-CUPE (only correctness) 42
Stage 2: CUPE (correctness and PU) 42
CUPE v. New Brunswick Liquor Corp (SCC 1979) Recognition of PU standard, more functionalism 43
Stage 3: Following CUPE 43
Bibeault (1988, SCC) More conservative than CUPE, more rule of law, no deference to stat interp 43
National Corn Growers Association (SCC, 1990) Deference accorded to stat interp question 44
Canada v. Mossop (1993, SCC) More rationales why court should show deference to ADMs 44
Pezim (1994, SCC) RS identified as falling b/w PU and correctness; somewhat probing examination, clearly wrong 44
Southam (SCC, 1997) Named the third SOR from Pezim “reasonableness simpliciter”, distinguishes PU 45
Stage 4: Increasing Complexity in SOR determination 46
Pushpanathan (SCC 1998) Introduction of the mandatory P&F approach to determine SOR 46
Ryan (SCC 2003) Application of P&F approach 47
Stage 5: Pre-Dunsmuir Critiques of SOR Jurisprudence & BC’s Response 48
Toronto (City) v. CUPE, Local 79 (2003, SCC) Lebel’s “Cri de Coeur” about the state of JR 48
Manz (BCCA 2009) The PU standard survives where ATA applies, constitutional 49
Stage 6: Dunsmuir & Simplifying SOR 49
Dunsmuir (SCC 2008) Modern approach to substantive JR 50
Stage 7: Post-Dunsmuir Developments 51
Khosa (SCC 2009) Dunsmuir test applies to JR under FCA 52
Nolan v. Kerry (SCC, 2009) Dunsmuir applied in statutory appeal situation 54
Northrop (SCC 2009) Only case where a true question of jurisdiction is found 56
Smith v. Alliance Pipeline (SCC 2011) Dunsmuir applied to appeal, costs issue 56
Mowat (2011) Costs case, SOR = reasonableness, BUT court appears to apply the correctness standard 57
Nor-Man (currently at SCC) Question of law of central importance to the legal system outside special expertise 57
SOR & Discretionary Decisions 57
Indicators of Statutory Discretion 58
Judicial Control of Discretion 58
Evolution of the law: 58
Maple Lodge Farms (SCC, 1982) 59
Thorne’s Hardware Ltd. v. The Queen (1983, SCC) 59
Baker v. Minister of Immigration 60
Suresh - says Baker wasn’t reweighing factors under the reasonableness approach 62
CUPE v. Ontario (Minister of Labour) (2003, SCC) (“Retired Judges” Case) 62
Khosa (SCC 2009) If discretionary decision + SOR = reasonableness + appropriate factors considered = don’t reweigh 63
Part I: Introduction
The Administrative State and Rule of Law
Admin Law is…
- …a branch of public law
o Concerned with relations between the subject and the State
o Seeks to regulate/control “gov action” that affects individuals, groups, and corporations
- …concerned with general principles of law that can be applied to decision-making in context-specific ways
- …not concerned with the substantive law pertaining to particular subject matters
General Purposes of Admin Law
1. To control gov power as exercised by the executive and admin branches of the state
o to confine gov’t power to its proper scope
o to curb potential for abuses of power
o to ensure proper procedures in the exercise of powers that affect rights/interests of citizens
o to ensure performance of mandatory statutory duties
2. To foster accountability and greater participation by parties in the d-m processes of gov that affect them
3. To ensure that the admin branch of gov effectively performs the tasks assigned to it
Admin Law v. Constitutional Law
- Both are types of public law
- Unlike constitutional law, admin law is not usually concerned with the validity of statutes
o But sometimes rights docs are used to trump statutes that don’t accord sufficient PF
- Admin law is concerned with exercises of power by gov officials/agencies made under statutory authority
- Admin law is rooted in fundamental constitutional principles such as the rule of law, legislative supremacy/parliamentary sovereignty subject to the division of powers and the Charter, the inherent jurisdiction of s. 96 superior courts and the principles of judicial independence
- There is a growing intersection between con law and admin law in certain contexts because of the Charter
o i.e. s. 7 of the Charter in relation to guarantees of PF
Who are ADMs
- Individuals, bodies, or agencies that exercise powers under statutes (delegated decision-making authority)
- Tribunals, boards, commissions, cabinet (G in C, LG in C), ministers, departmental officials, professional associations exercising statutory powers of self-regulation (i.e. Law Society), municipal govs, school boards, public inquiries, the legislature, crown corporations
- Nominally private organizations that exercise statutory powers are subject to admin law (i.e. Ontario Children’s Aid Societies)
- Universities are now usually treated as bound by admin law principles in much of what they do (e.g. decisions about tenure, promotions, or student discipline)
- Some of the principles of admin law are extended to domestic tribunals (private bodies that do not exercise statutory powers but hold quasi-monopolistic powers in relation to the governance of certain spheres of public activity i.e. sports associations, clubs, religious bodies)
- Not all actions of gov are dealt with by admin law
o For example, where the gov acts in ways that are similar to the private sector, such as purchasing goods or dealing with employees, the principles of private law would apply
Why Independent ADMs Exist
- Legitimacy: there may be a need to insulate the decision from partisan politics and pressures
o I.e. where the decision pits the gov against the citizen, the credibility, legitimacy, and acceptability of the decisions made may be enhanced if the matter is distanced from the bureaucracy
- Better decisions: The ADM may be better able to draw upon expertise and/or develop more open and participatory processes to hear those who are interested
- For political reasons: it is sometimes more convenient for gov to shed direct political responsibility for decision-making in sensitive policy areas to avoid unfavourable publicity
Advantages of ADMs
- Better able to deal with policy laden subject-matter which is not well-suited to resolution through an adversarial judicial system (i.e. environmental impact assessments, setting utility rates, etc)
- Expertise and specialization
- Broader public participation is possible
- Frees judicial resources: the large number of admin decisions made would clog the courts
- Procedural and efficiency concerns: courts are formal, slow, expensive and require lawyers; a more informal, more accessible, quicker and less expensive decision-making process may be desired
- Ideology: sometimes the perceived ideology of the judiciary may be thought to be an impediment to the legitimacy and effectiveness of the statutory scheme (i.e. labour relations)