Administrative Law

Question 1

What branch of the government does administrative law exist within?

Answer 1

The excutive

Question 2

What does it mean that admin bodies don’t have inherent jurisdiction?

Answer 2

All their power comes from statute.

Question 3

What are some of the reasons justifying the administrative state?

Answer 3

1. The need to depoliticize some decision making
2. Need for greater specialization
3. A reluctance to enmesh courts in the admin of policy bc the volume of decisions
4. The view of ppl subjected to decision making that the courts are unhelpful to achieving their goals

Question 4

What are some of the constraints on the design of ADMs?

Answer 4

Federalism
The charter establishing limits on who can be an ADM

Question 5

Talking about the pre-Wall era, what did the second set of cases addressing what decisions are subject to admin law stand for?

Answer 5

JR and public law remedies are available when a voluntary organisation makes a decision of sufficiently public character

Question 6

The Toronto port authority factors for determining is of sufficiently public character to be subject to JR

Answer 6

1. Character of the matter for which review is sought
2. Nature of the ADM and its responsibilities; Decision shaped by law (he’s saying is this a particular decision that comes from law? Does it imminent directly from a source of law)
   3.Relationship to other statutory schemes or other parts of government
3. Agent of government or directed, controlled, or significantly influenced by a public entity
4. Suitability of public law remedies*
5. Existence of a compulsory power
6. Serious public dimension

Question 7

The ratio from Wall

Answer 7

JR is only available where there is an exercise of state authority and where that exercise is of sufficient public character

Question 8

Why the Sprague application for JR failed on the first branch of the Wall test

Answer 8

There was no exercise of state authority - there was no statute governing the hospital w/ respect to its visitor’ policy. The question is just, is this body exercising a power that has been given to it by law?

Question 9

The Two things that an application for JR to a superior court is application for:

Answer 9

1. A determination of whether or not a public decision maker has acted unlawfully
2. If the answer’s yes, then the applicant is asking for a remedy

Question 10

JR being available (is the same as)

Answer 10

Being subject to administrative law (is the same as)

Question 11

The meaning of ‘state authority’ as articulated in Wall

Answer 11

Concerned with the rule of law “insofar as this refers to the exercise of delegated authority”

Question 12

Where you make an application for JR of a federal ADM

Answer 12

Federal court

Question 13

Where you go if challenging the decision of a provincial ADM to make an application for JR

Answer 13

A superior court, but the special divisional court

Question 14

When an application for JR may be made to the superior court of justice

Answer 14

“…where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.”

Question 15

How many judges hear an application for JR

Answer 15

Three with one exception

Question 16

The question of whether it’s appropriate for a court to review a decision

Answer 16

Justiciability

Question 17

Key things to consider when determining a question of justiciability

Answer 17

Institutional capacity and legitimacy

Question 18

Other things to consider on questions of justiciability

Answer 18

1. Whether the matter before the court be economical and efficient investment of judicial resources
2. that there is a sufficient factual and evidentiary basis for the claim
3. That there would be an adequate adversarial presentation of the parties’ positions
4. no other administrative or political body has been given prior jurisdiction of the matter by statute’”

Question 19

Prerogative powers

Answer 19

Common law powers, recognized by the common law not statute, given by the common law to the Crown (ie to some state actors)

Question 20

When the exercise of a prerogative power will be justciable

Answer 20

If its subject matter affects the rights or legit expectations of an individual

Question 21

5 main ideas captured by the rule of law

Answer 21

1. the law is supreme and there is one law for all
2. Have laws and a law making process
3. All state action must find its source in law
4. Access to the courts, or some institutional framework to uphold rights.
5. Institutional independence

Question 22

What it means to be constrained by the rule of law

Answer 22

1. All public powers must be exercised in a way that serves the purpose or the spirit of the statute
2. Discretion is limited, must be exercised in a way that shows good faith = consistent with purpose and spirit of the statute

(Justice Rand in Roncarelli)

Question 23

Where a different standard of review (other than reasonableness) could apply (ie, the Vavilov presumption is rebutted)

Answer 23

1. Where the legislature explicitly prescribes through statute
2. The legislature may direct that derogation from reasonableness is appropriate by providing for a statutory appeal mechanism from an ADM to a court (signalling the application of appellate standards)

Question 24

What is meant by deference as respect (ie, baker)

Answer 24

“requires not submission but a respectful attention to the reasons offered or which could be offered in support of a decision. . . .’”

Question 25

Audi alteram partem

Answer 25

‘hear the other side’

Question 26

Nemo judex in sua causa

Answer 26

the idea that one cannot be the judge in one’s own cause

Question 27

Superior courts

Answer 27

The superior courts are those courts for whom the judges are appointed by the federal government, which is mandated by s. 96

Question 28

Inherent jurisdiction

Answer 28

Jurisdiction that does not derive from statute

Question 29

The 3 part test for determining whether a transfer of powers from s. 96 courts to a provincial admin infringed s. 96

Answer 29

1. The historical inquiry
2. Are the powers adjudicative in nature?
3. What is the relation of the impugned jurisdiction/powers to the overall administration scheme?

Question 30

What is the general rule on ADMs granting remedies from Tapirisat?

Answer 30

When an ADM is granting a remedy, the remedy MUST be provided for by statute

Question 31

What is the doctrine of necessarily implied remedial powers?

Answer 31

A remedy can be provided for where it’s not explicitly in statute but in is necessarily implied, but 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 32

Name 3 limits on the design of ADMs

Answer 32

1. Parliament and provincial legislatures can only delegate powers they themselves hold
2. Parliament can’t abdicate or delegate their LEGISLATIVE authority
   3.Neither parliament nor the provincial legislatures can create an ADM that would impair the status of the superior courts

Question 33

The two ways in which parliament or provincial legislatures could create an ADM that impairs the constitutional status of the ADM

Answer 33

1. Parliament or prov. Leg. transfers dispute resolution powers from the superior courts to an ADM
2. By creating an ADM that impairs or intrudes on the core jurisdiction of the superior courts