Admin Law 2.0 Flashcards
How you can challenge a decision by an ADM, broadly speaking
- Internal mechanisms
- External mechanisms
The “slip rule”
All tribunals can fix things like clerical or factual errors due to mistake or dishonesty without statutory permission
External, non-court mechanisms for challenging a decision
- Going to court
- Judicial review
5 major questions to ask what determining what kind of appeal is avaialble
- Does the tribunal’s enabling statute provide for a right of appeal?
- What is the scope of available appeal?
- What is the standard of review the court should apply?
- Is an appeal available as of right or is leave required?
- If leave is required, who may grant it?
Threshold eligibility questions for determining if JR is available
- Are you dealing with a public actor who is making a decision of sufficiently public character such that it can be judicially reviewed?
- 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 - The remedy you are seeking has to be meaningul
The 3 sources of procedural obligations
- Statute
- Common law
- Constitution
General rule of statutory procedural obligations
An ADM has to follow all statutory rules that apply to them
Can statute override the common law duty of fairness?
Yes
The doctrine of legit expectations
Where a procedural obligation may be required by the duty of fairness
General considerations about what gives rise to legit expectations
- Who is publishing the information?
- Can they make a promise?
The two kinds of common law procedural obligations
- Participatory
- Laws about bias
Framework for the common law duty of fairness
- Does the duty of fairness apply?
- If yes, what does that duty entail?
Ie, what DEGREE of procedural fairness if owed? And what specific PROCEDURES must be followed? - Was the duty fulfilled?
All actions governed by administrative law can be subject to JR
True
Limits on the discretion of ADMs
- The ADMs discretion has to be exercised in a way that is consistent with its statutory purposes
- Discretion must always be exercised in good faith
- Decision maker must always consider all of the options that the law allows for
- Must exercise the discretion
Audi alteram partem
“Hear the other side”
Nemo judex in sua causa
One cannot be the judge in one’s own case
Inherent jurisdiction
Not from statute, inheres to the existence
The doctrine of necessarily implied remedial powers
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
Original jurisdiction
Someone sues the government
The 3 factors to consider when determining if there’s a general duty to act fairly?
- the nature of the decision to be made by the administrative body;
- the relationship existing between that body and the individual; and
- the effect of that decision on the individual’s rights.”
ADMs that don’t have to abide by the common law duty of fairness
Those making prelim decisions, or those acting in a legislative capacity
A finding of bias is a breach of what
The duty of procedural fairness
Impartial mind
An open mind
Independence
Independence is about the institution and relationships that may affect impartiality
What to look at when assessing bias, in what order?
- The general rules
- Apply the general rules to the particular context and consider additional considerations
The rule on bias from Boniface?
“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”
