Ch. 4

Question 1

Judicial Review

Answer 1

1. Review of Decision: Review of a decision that has been made by an administrative tribunal or decision-maker.
2. Statutory Authority: a Supreme Court Justice can only determine if a decision-maker acted within their statutory authority.
3. Appeal: judicial review is not an appeal.
4. Ultra Vires: If a decision-maker did act outside their authority, it’s ultra vires.

Question 2

Standard of Review

Answer 2

Test: The “standard of review” is the test the court applies to decide if it can give a remedy to a Tribunals decision.

Question 3

Rule of Law

Answer 3

All the things (e.g., principles, procedure, etc.) that address the way in which a community is governed.

Question 4

Set aside a judgement

Answer 4

Overturn: Setting aside judgment is an application to overturn a court’s judgment, verdict or other final ruling in a case.

Question 5

Tribunal

Answer 5

Power of decision: Any administrative body or official that can exercise statutory power of decision.

Question 6

Ultra Vires

Answer 6

“beyond the power”, when decision-maker acted outside their power.

Question 7

Natural Justice

Answer 7

Bias: The rule against bias (nemo iudex in causa sua)

Fair: The right to a fair hearing (audi alteram partem).

Question 8

3 ways administrative decisions can conflict with the constitution:

Answer 8

1. Vertical: jurisdiction, vertical division of powers (i.e., federalism)
2. Horizonal: jurisdiction, horizontal division of powers (i.e., another branch of government)
3. Charter: restricting a protection in the Charter of rights and freedoms.

Question 9

Statutory authority confers two types of jurisdiction which are grounds for setting aside a decision:

Answer 9

1. Substantive: doing something the legislature did not authorize it to do.
2. Procedural: violated it own rules or norms of procedural fairness.

Question 10

POGG

Answer 10

1. POGG: Peace, Order and Good Government
2. Jurisdiction: Situations where the federal government can use emergency powers to address issues normally falling within provincial jurisdiction.

Question 11

Three types of courts:

Answer 11

1. Provincial courts (e.g., family court)
2. “hybrid courts”: Superior Courts and Courts of Appeal (Fed. appointed judges, provincial cases)
3. Federal Courts (e.g., tax court, fed. court of appear, supreme court)

Question 12

“Read in”

Answer 12

“reading in” – inserting words where there are none in a statute

Question 13

“Read down”

Answer 13

Interpretation: “reading down” where a particular meaning/interpretation is chosen to be in compliance.

Question 14

impugn

Answer 14

call into question

Question 15

mandamus

Answer 15

Writ: a judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty.

Question 16

3 branches of government

Answer 16

1. Legislative (House of Commons, Senate, Crown [i.e., Governor General])
2. Executive (Crown, political executive [i.e., cabinet], and permanent executive [i.e., FPS])
3. Judicial

Question 17

Private member’s bill

Answer 17

A bill introduced in the house of commons by a member of parliament who is not a cabinet minister [i.e., not part of the political executive].

Question 18

Statute v. regulation

Answer 18

Statute: enacted by parliament

Regulations: delegated/subordinate legislation to statute, build-out details of the statute

Question 19

Common Law

Answer 19

1. Previous rulings: When a judge decides a dispute between two parties, thier written reasons become part of the common laws.
2. Precedent

Question 20

Soft Law

Answer 20

Procedural rules: Tribunal-specific rules related to procedure

Question 21

Three important features of Tribunals:

Answer 21

1. Statutory mandate: unique statutory mandate
2. Discretion: level of discretion varies with status in branch, Ministers have the most
3. Executive: belong to the permanent executive (i.e., Ministers), raises questions about impartiality.

Question 22

4 fundamental concepts which characterize the relationship b/w courts and administrative tribunals:

Answer 22

1. The standard of review (reasonableness or correctness)
2. Natural justice/procedural fairness
3. Statutory appears from tribunal decisions
4. Judicial review of tribunal decisions: the remedial powers of courts