Administrative Law Flashcards
What branch of the government does administrative law exist within?
The excutive
What does it mean that admin bodies don’t have inherent jurisdiction?
All their power comes from statute.
What are some of the reasons justifying the administrative state?
- The need to depoliticize some decision making
- Need for greater specialization
- A reluctance to enmesh courts in the admin of policy bc the volume of decisions
- The view of ppl subjected to decision making that the courts are unhelpful to achieving their goals
What are some of the constraints on the design of ADMs?
Federalism
The charter establishing limits on who can be an ADM
Talking about the pre-Wall era, what did the second set of cases addressing what decisions are subject to admin law stand for?
JR and public law remedies are available when a voluntary organisation makes a decision of sufficiently public character
The Toronto port authority factors for determining is of sufficiently public character to be subject to JR
- Character of the matter for which review is sought
- 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 - Agent of government or directed, controlled, or significantly influenced by a public entity
- Suitability of public law remedies*
- Existence of a compulsory power
- Serious public dimension
The ratio from Wall
JR is only available where there is an exercise of state authority and where that exercise is of sufficient public character
Why the Sprague application for JR failed on the first branch of the Wall test
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?
The Two things that an application for JR to a superior court is application for:
- A determination of whether or not a public decision maker has acted unlawfully
- If the answer’s yes, then the applicant is asking for a remedy
JR being available (is the same as)
Being subject to administrative law (is the same as)
The meaning of ‘state authority’ as articulated in Wall
Concerned with the rule of law “insofar as this refers to the exercise of delegated authority”
Where you make an application for JR of a federal ADM
Federal court
Where you go if challenging the decision of a provincial ADM to make an application for JR
A superior court, but the special divisional court
When an application for JR may be made to the superior court of justice
“…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.”
How many judges hear an application for JR
Three with one exception
The question of whether it’s appropriate for a court to review a decision
Justiciability
Key things to consider when determining a question of justiciability
Institutional capacity and legitimacy
Other things to consider on questions of justiciability
- Whether the matter before the court be economical and efficient investment of judicial resources
- that there is a sufficient factual and evidentiary basis for the claim
- That there would be an adequate adversarial presentation of the parties’ positions
- no other administrative or political body has been given prior jurisdiction of the matter by statute’”
Prerogative powers
Common law powers, recognized by the common law not statute, given by the common law to the Crown (ie to some state actors)
When the exercise of a prerogative power will be justciable
If its subject matter affects the rights or legit expectations of an individual
5 main ideas captured by the rule of law
- the law is supreme and there is one law for all
- Have laws and a law making process
- All state action must find its source in law
- Access to the courts, or some institutional framework to uphold rights.
- Institutional independence
What it means to be constrained by the rule of law
- All public powers must be exercised in a way that serves the purpose or the spirit of the statute
- 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)
Where a different standard of review (other than reasonableness) could apply (ie, the Vavilov presumption is rebutted)
- Where the legislature explicitly prescribes through statute
- 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)
What is meant by deference as respect (ie, baker)
“requires not submission but a respectful attention to the reasons offered or which could be offered in support of a decision. . . .’”
Audi alteram partem
‘hear the other side’
Nemo judex in sua causa
the idea that one cannot be the judge in one’s own cause
Superior courts
The superior courts are those courts for whom the judges are appointed by the federal government, which is mandated by s. 96
Inherent jurisdiction
Jurisdiction that does not derive from statute
The 3 part test for determining whether a transfer of powers from s. 96 courts to a provincial admin infringed s. 96
- The historical inquiry
- Are the powers adjudicative in nature?
- What is the relation of the impugned jurisdiction/powers to the overall administration scheme?
What is the general rule on ADMs granting remedies from Tapirisat?
When an ADM is granting a remedy, the remedy MUST be provided for by statute
What is the doctrine of necessarily implied remedial powers?
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
Name 3 limits on the design of ADMs
- Parliament and provincial legislatures can only delegate powers they themselves hold
- 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
The two ways in which parliament or provincial legislatures could create an ADM that impairs the constitutional status of the ADM
- Parliament or prov. Leg. transfers dispute resolution powers from the superior courts to an ADM
- By creating an ADM that impairs or intrudes on the core jurisdiction of the superior courts
