Admin Law 2.0

Question 1

How you can challenge a decision by an ADM, broadly speaking

Answer 1

1. Internal mechanisms
2. External mechanisms

Question 2

The “slip rule”

Answer 2

All tribunals can fix things like clerical or factual errors due to mistake or dishonesty without statutory permission

Question 3

External, non-court mechanisms for challenging a decision

Answer 3

1. Going to court
2. Judicial review

Question 4

5 major questions to ask what determining what kind of appeal is avaialble

Answer 4

1. Does the tribunal’s enabling statute provide for a right of appeal?
2. What is the scope of available appeal?
3. What is the standard of review the court should apply?
4. Is an appeal available as of right or is leave required?
5. If leave is required, who may grant it?

Question 5

Threshold eligibility questions for determining if JR is available

Answer 5

1. Are you dealing with a public actor who is making a decision of sufficiently public character such that it can be judicially reviewed?
2. The problem with the decision, the basis for challenging the decision, must be one of the possible grounds for review…
   - Abuse of discretion
   - Jurisdiction
   - Procedural unfairness of a procedural problem
   - Substantive review
3. The remedy you are seeking has to be meaningul

Question 6

The 3 sources of procedural obligations

Answer 6

1. Statute
2. Common law
3. Constitution

Question 7

General rule of statutory procedural obligations

Answer 7

An ADM has to follow all statutory rules that apply to them

Question 8

Can statute override the common law duty of fairness?

Answer 8

Yes

Question 9

The doctrine of legit expectations

Answer 9

Where a procedural obligation may be required by the duty of fairness

Question 10

General considerations about what gives rise to legit expectations

Answer 10

• Who is publishing the information?
• Can they make a promise?

Question 11

The two kinds of common law procedural obligations

Answer 11

• Participatory
• Laws about bias

Question 12

Framework for the common law duty of fairness

Answer 12

1. Does the duty of fairness apply?
2. If yes, what does that duty entail?
   Ie, what DEGREE of procedural fairness if owed? And what specific PROCEDURES must be followed?
3. Was the duty fulfilled?

Question 13

All actions governed by administrative law can be subject to JR

Answer 13

True

Question 14

Limits on the discretion of ADMs

Answer 14

1. The ADMs discretion has to be exercised in a way that is consistent with its statutory purposes
2. Discretion must always be exercised in good faith
3. Decision maker must always consider all of the options that the law allows for
4. Must exercise the discretion

Question 15

Audi alteram partem

Answer 15

“Hear the other side”

Question 16

Nemo judex in sua causa

Answer 16

One cannot be the judge in one’s own case

Question 17

Inherent jurisdiction

Answer 17

Not from statute, inheres to the existence

Question 18

The doctrine of necessarily implied remedial powers

Answer 18

Where there is a gap in the legislation (ie, the statute doesn’t provide for the remedy sought), this doctrine is an exception to the general rule from Tapirisat and says , there must be evidence that the exercise of this power is a PRACTICAL NECESSITY for the ADM to accomplish the stat mandate set by the legislature

Question 19

Original jurisdiction

Answer 19

Someone sues the government

Question 20

The 3 factors to consider when determining if there’s a general duty to act fairly?

Answer 20

1. the nature of the decision to be made by the administrative body;
2. the relationship existing between that body and the individual; and
3. the effect of that decision on the individual’s rights.”

Question 21

ADMs that don’t have to abide by the common law duty of fairness

Answer 21

Those making prelim decisions, or those acting in a legislative capacity

Question 22

A finding of bias is a breach of what

Answer 22

The duty of procedural fairness

Question 23

Impartial mind

Answer 23

An open mind

Question 24

Independence

Answer 24

Independence is about the institution and relationships that may affect impartiality

Question 25

What to look at when assessing bias, in what order?

Answer 25

1. The general rules
2. Apply the general rules to the particular context and consider additional considerations

Question 26

The rule on bias from Boniface?

Answer 26

“The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile”