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Administrative Law
LAWS3506
| Question | Answer |
|---|---|
| What is the enabling legislation in Dunsmuir? | Public Service Labour Relations Act (PSLRA) |
| Which standard of review applied in Dunsmuir? | Standard of Reasonableness |
| What are the three reasons why the reasonableness standard applied in Dunsmuir? | 1. The PSLRA contained a privative clause 2. The adjudicator relied on his expertise 3. The issue was not of central importance to the legal system |
| In Dunsmuir was the adjudicator acting reasonably or unreasonably? | Unreasonably |
| What is judicial review? | Review of administrative decisions made by the judiciary including agencies, tribunals, commissions, boards and counsels who have been delegated powers from statutes as acts of Parliaments or legislatures. |
| What are the four grounds for judicial review? | procedural impropriety, illegality, unreasonableness, and unconstitutionality |
| What are the two standards of review post-Dunsmuir? | Reasonableness and Correctness |
| What is reasonableness? | Reasonableness is the deferential standard that a court can give to an administrative tribunal when reviewing its decision |
| What is correctness? | The court will give no deference at all and will judge the decision on the basis of whether or not it is correct in law |
| What was patent unreasonableness? | Patent unreasonableness was the highest level of deference the court could five to the administrator prior to Dunsmuir; the decision had to be so outrageously bad that it was patently unreasonable |
| What factors determine the reasonableness test should be applied? | 1. a privative clause 2. a discrete or specialized regime in which the decision maker has special expertise 3. the nature of the legal question in relation to its importance in the legal system |
| What factors determine the correctness standard should be applied? | 1. constitutional questions regarding the division of power 2. a question of law that is of central importance to the legal system and that is outside the adjudicator's expertise 3. questions regarding the jurisdictional lines between tribunals |
| Which standard of review was abolished by Dunsmuir? | Patent unreasonableness |
| What were the standards of review prior to Dunsmuir? | Reasonableness, Correctness, Patent Unreasonableness |
| Which standard of review applies to issues that are black and white? | Standard of Correctness |
| Which standard applies to the 'shades of grey'? | Standard of Reasonableness |
| What is Administrative Law? | Admin law is a branch of public law. Admin law places legal limits on government actions and provides remedies that are available from tribunals or courts |
| What does Admin law cover? | Employment, regulated industries, professions and trades, social control, immigration, human rights |
| What institutions are covered by admin law? | legislatures, cabinets, municipalities, crown corporations, and independent agencies |
| How does AV Dicey define the rule of law? | 1) no one should be made to suffer except for a distinct breach of law 2) the gov and citizens alike are subject to the law of the land 3) the law should be administered by ordinary courts |
| What are the three branches of government? | Legislative, Executive, Judiciary |
| What is the legislative branch of government? | the legislature is the forum where important political decisions are debated, and approved. Public programs originate from statutes passed by the legislative branch. |
| What is the executive branch of government? | Composed of the Crown, PM, and Cabinet. The cabinet is made of ministers who adopt strategic policies, set budgets, and pass regulations. The minister is accountable for the decisions in their department. |
| What is the judiciary? | Courts maintain a supervisory jurisdiction over the institutions and officials that administer public programs. |
| Why are admin agencies created? | 1 demonstrate independence 2 reduce the size/workload of a department 3 reduce conflicts of interest 4 provide HR flexibility 5 provide expertise 6 ensure representative 7 avoid permanence 8 reduce labor cost 9 signal new approach 10 achieve uniformity |
| What are some types of Agencies, Boards and Commissions? | 1 advisory agencies 2 operational service agencies 3 operational enterprises 4 regulatory agencies 5 adjudicative agencies 6 crown foundations 7 trust agencies |
| What is a tribunal? | tribunals are created or the purpose of adjudicating/settling disputes between individuals and companies or individuals/companies and the government. They are part of the executive branch. |
| Why use a tribunal? | 1 mechanism to review the decisions of a government decision maker 2 a decision maker can resolve disputes between individuals/companies (not just government) 3 if a decision will affect a person's livelihood a tribunal is better than an agency |
| What are some political advantages of using tribunals? | 1. demonstrate impartiality in decision 2. ensure fairness of procedure 3. tells community the issue is important 4. distance gov from unpopular decisions 5. citizen participation 6. experts involved 7. increased efficiency/effectiveness |
| What are some advantages of using tribunals over courts? | 1. judges may not have the personal knowledge of the community 2. members develop expertise 3. tribunal members can include those from affected populations 4. less structural formalities 5. quick and efficient (no red tape) |
| What are some similarities between tribunals and courts? All parties must have: | 1. reasonable notice 2. an opportunity to present their case 3. been informed of the case to meet 4. present evidence 5. adjournments 6. final submissions 7. representation 8. unbiased decision maker 9. apply only the law relevant to the proceedings |
| What is the role of judicial review? | judicial review is one of the principle means of ensuring the admin process operates within the constraints of the principles of legality |
| What are the judicial remedies available in Admin law? | 1. certiorai: quash or set aside 2. mandamus: order the performance of a public duty 3. habeas corpus: legality of a person's detention |
| What are the grounds for judicial review? | 1. procedural impropriety 2. illegality 3. unreasonableness 4. unconstitutionality |
| What is procedural fairness? | requirement that a decision maker acting under a statutory power must give any person whose interests are affected by the decision reasonable notice of the intended decisions, reasons for it, and an opportunity to respond - by an impartial decision maker |
| What qualifies as quasi-judicial? | 1. anything in the statute to suggest a hearing is used 2. whether the decision directly or indirectly affects the person's rights 3. use of adversarial process 4. obligation to apply substantive rules |
| How does procedural fairness effect the right to be heard? | procedural fairness requires that a person be consulted before a final decision can be made (not necessarily in person) |
| What is the legitimate expectations principle? | if there is an expectation of a certain result, or an expectation that a certain practice or procedure will be followed, it cannot be changed without first notifying those who will be affected by the change and giving them the opportunity to comment |
| What are the 5 factors impacting procedural fairness? | 1. the nature of the decision 2. nature of the statutory scheme 3. importance of the decision to those involved 4. legitimate expectations 5. deference to the decision maker |
| What is discretion? | the power of a government official or agency to choose a course of action. legal discretion is based on reasonable evidence and reasonable beliefs |
| What are the factors involved in a decision maker's right to chose between options? | 1. exercise discretion within the bounds of the statute 2. must only consider relevant factors 3. similar cases should be tried similarly 4. discretion must be exercised in good faith |
| What is fettering discretion? | Refusing to consider an option that is available under law, or refusing to consider a factor relevant to a choice of action, when making a decision that affects a persons rights/interests |
| What is jurisdiction? | scope of authority conferred on a gov body/official by legislation or common law: 1. the powers of any gov department, ABC or official are limited to those set by law 2. ABCs must follow the procedures set out in legislation about how to exercise power |
| What is delegation? | When someone with authority authorizes someone else to do a duty that would otherwise be their own |
| Why is sub-delegation prohibited? | It is prohibited to maintain the quality and fairness of the agency's decision |
| When is sub-delegation allowed? | It may be allowed if stated in the statute or if the ABC is serving a purely administrative functio |
| What is the 'requirement of reasons?' | The duty of fairness requires reasons to be provided by the decision maker, reinforces public confidence, allow parties to see the issues were considered carefully, useful if an appeal is filed |
| What is the reasonable apprehension of bias? | Decisions must be made free from any reasonable apprehension of bias: what would a reasonable person conclude, viewing the matter realistically and having thought it through |
| What is the right to notice? | the provision of the date, time, place, and case to meet... notices do not always include the disclosure of evidence that will be used in the case |
| What does it "he who hears decides" mean? | the adjudicator must be present for all parts of the hearing in order to make the final decision |
| What are the 5 factors of procedural fairness? | 1. nature of the decision and process used to make it 2. nature of the statute under which the ABC operates 3. impact the decision will have on the individual 4. legitimate expectations the individuals might have 5. deference to the decision maker |
| What factors are considered when determining if someone should get an oral hearing? | 1. circumstances of the case 2. nature of the inquiry 3. rules under which the tribunal is acting 4. subject matter the tribunal is dealing with |
| What is the right to be represented? | if someone is unable to effectively make their case (to make it heard) they should have access to legal aid |
| How do courts determine if there is a bias? | Courts look at the impression given to people. It is irrelevant whether or not bias actually exists so long as it appears that it does |
| What are the elements that make up the element of impartiality under procedural fairness? | 1. decision maker is free from individual bias 2. tribunal/agency's structure does not favour one party over another (known as institutional bias) |
| What is reasonable apprehension of bias? | the decision maker appears to be bias whether or not they actually are biased |
| What is a conflict of interest? | a financial interest in the outcome of the case or any interest that is incomplatable with an individual's function as a member of the tribunal |
| What are some elements of individual bias? | 1. meeting with only one party in the absence of another 2. close friendship affected by the case 3. relatives affected by case 4. financial interest from the outcome 5. decision makers belong to a group what has made a position about the issues |
| What are some (more) elements individual bias? | 6. express opinions about issues before arguments have been heard 7. express like/dislike for a party 8. has litigation against a party or witness in proceeding 9.business or personal relationship with party or witness 10. accept gifts from parties |
| What are some elements of institutional bias? | 1. Are members appointed for fixed terms or at leisure? 2. Are salaries fixed or can the gov change them? 3. Are appointments full or part time? 4.How much discretion does the agency chair have? 5. Are staff employed by agency or gov? |
| What are some (more) elements of institutional bias? | 6. does the minister in charge conduct evaluations and if so based on what? 7. Who determines the budget?? |
| What is constitutional independence? | Requirements of judicial independence: security of tenure, financial security, control the operations in their courts |
| Post-Dunsmuir, what did courts say about the provision of reasons? | In order for something to be reasonable it requires a chain of adequate reasoning. Deficiency of reasons results in judicial review based on procedural fairness (The adequacy of the reasons don't really matter when dealing with procedural fairness) |
| What factors determine if a decision was made on adequate reasons? | The reasons should be justifiable, transparent, and intelligable |
| What happens when there are multiple reasonable outcomes? | Follow the decisions of the decision maker even if there are other reasonable options |
| What is an example of a question of law? | Answer: What is a limitation period? When did it start? |
| What is an example of a question about the facts of law? | Answer: Did the person have a reasonable limitation period? |
| Which standard of review generally applies to procedural fairness cases? | Generally uses the standard of correctness, but the courts need to take into account the deference of the decision making agency to interpret its statute (does the right to be heard require written submissions or an oral hearing) |
| What happens if a decision of procedural fairness gets reviewed is appealed? | The next judge is likely to use the standard of reasonableness (since there is not point in reviewing for correctness twice). However the decision must be both reasonable and correct or it won't stand |
Created by:
alentini
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