Admin law and the charter Flashcards
Whats the fundamental principle of admin remedies?
Fundamental principle: The powers of administrative decision-makers are prescribed by a statutory grant of jurisdiction.
This can be expressed or readily implied.
Consitutional remedies sections
Constiutional Remedies
Section 24(1) of the Charter: Enforcement of guaranteed rights and freedoms
Anyone who has been guaranteed rights/freedoms and has been infringed upon can apply to a court to obtain a remedy.
The remedy will be at the court’s discretion on what is appropriate and just in the circumstances.
Section 24(2) of the Charter: Exclusion of evidence bringing the administration of justice into disrepute
Evidence obtained, by proceedings taken through 24(1), in a manner that infringed/ denied rights or freedoms will be excluded if it would be contrary to the administration of justice.
Section 52(1) of the Constitution Act 1982
The Constitution of Canada is the supreme law of Canada.
Any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Allows courts to make statements of invalidity.
R v Conway
R. v. Conway, 2010 SCC 22
Facts: Concerned the defendant who was detained in a mental health facility after assaulting his aunt.
The conditions of his incarceration raised several Charter challenges.
Sought an absolute discharge.
Ontario Review Board:
The board concluded that he was a threat to public safety and therefore he would not be allowed absolute discharge.
Appeal:
The review board was not a court of competent jurisdiction under the charter because the remedy being sought was not available.
Issue: Was the Ontario Review Board a court of competent jurisdiction for the purposes of 24(1)?
Held: Abella J held that it was. However, the appeal was dismissed because Conway was not entitled to the charter remedies he was seeking.
Justification
P 2: When the charter was established in 1982, its relationship with administrative tribunals was at a clean slate.
Mills
Facts: Concerned an individual arguing that their right to trial in a reasonable time under s11(b) of the charter had been violated.
Issue: Whether the magistrate was a court of competent jurisdiction.
Held: A court of competent jurisdiction has jurisdiction over:
The person
The subject matter
The remedy
Conclusion: They listen to evidence from both sides to decide if there’s enough to proceed to trial.
They don’t have the power to decide if someone is guilty, impose penalties, or resolve issues like Charter rights violations. Therefore it is not a court of competent jurisdiction
Slaight
Facts: Concerned an employee who was terminated for performance. The company was ordered by an adjudicator to pay damages and issue a letter of recommendation.
Issue: Whether the order was contrary to s2(b) of the charter.
Held: There is no question that the charter applies to the order made by the adjudicator.
Not concerned with whether or not the law is contrary to the charter; if it was, the law would be void.
Therefore must look at this like an exercise of discretion, once a person is acting in a way that violates charter rights, they are acting ultra vires and therefore their decision will get set aside.
Cuddy
Held: General principle: If a tribunal has the authority to decide on questions of law, they have the authority to decide constitutional and charter questions.
P20:
Abella J: Makes it clear that theres not a separare charter for the courts and another for administrative tribunals.
If they have the power to interpret the law, that includes the Constitution and the charter.
P78:
If the tribunal has the authority to decide on questions of law, but the legislature expressly states that they cannot rule on the charter, the tribunal cannot.
Tribunals with the power to decide on questions of law:
Determine things on charter grounds.
Must act in accordance with the charter.
P80:
If s52 is engaged, tribunals should be able to assess constitutional questions when a remedy is sought under section 24(1).
NB: Only applies to tribunals that can determine questions of law.
When will charter apply
Must ensure that the charter applies, the entity must be:
A government carrying out a government function
A private entity carrying out a governmental function in furtherance of a specific governmental program/policy.
Triggering public law functions.
What section of charter says when the charter will apply
Section 32(1) of the charter
The charter applies to:
The Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
The legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Which ways can charter be breached
- Through legislation: Governments can enact unconstitutional law that, on its face, violates the Charter- will be declared void under s52.
If a provision of an enabling statute is inconsistent with the charter, the tribunal will not apply it. - The statute itself is constitutional, but the decision maker, in applying it, is breaching the charter.
The enabling legislation action remains valid, but a remedy for the unconstitutional action can be sought under s24(1).
What test used
Oakes test
Proportionality substantive etc
Main cases
Dore
Loyola
Trinity western
Dore
Facts: A disciplanary body reprimanded a lawyer due to his conduct in a court proceeding. The lawyer challenged the exercise of discretion, not the actual Ethical Code.
Issue: The courts found it difficult to apply the Oakes test to exercises of administrative discretion.
Held: No need to retreat to an Oakes analysis to protect charter values, administrative decisions are always required to consider fundamental values.
The approach used when reviewing the constitutionality of a law is different from reviewing an administrative decision that is said to violate the rights of a particular individual.
Administrative bodies must consider Charter values within their scope of expertise.
The decision maker must determine whether its decision will limit any of the fundamental individual rights and if yes, exercise its discretion in a manner that will balance the rights with its statutory powers and make a proportional decision.
The reasonable standard should be used to judicially review the exercise of discretion even where charter values are engaged.
Loyola
Held: Reaffirmed and applied Dore.
The minister, in evaluating the school’s proposed alternative program, had failed to proportionately balance the Charter value of freedom of religion with the statutory objectives underlying the ERC Program.
He did not adequately balance the right to freedom of religion.
Trinity western
Held: Reaffirmed and applied dore.
The delegated authority must be exercised in light of the constitutional guarantees and the values that they reflect.
Charter values are those that underpin each right and give it meaning.
They help determine the extent of any infringement.
An administrative decision must minimally impair any charter rights that are engaged while achieving the statutory objectives.
A decision that has a disproportionate impact on charter rights is not reasonable.
Dore/loyola framework
The Dore/Loyola Framework
P39 Loyola: Whether the administrative decision engages the character by limiting charter protections.
York Region: The correctness standard of review applies.
P57 Dore: If yes, is the limitation proportionate given the nature of the statutory and factual context?
Reasonableness standard applies: The extent of the impact on theCharterprotection must be proportionate in light of the statutory objectives.
Summary: When an administrative decision limits Charter rights or values, it is unreasonable if the decision maker doesn’t properly balance those rights with the statutory goals.
