Ch.9, Administrative Law Flashcards
Why is administrative law considered public?
Relationship of individuals/agencies/institutions to the state
Define the U.S Chevron Deference Principle and how it differs from the Canadian administrative law.
US, courts are not going to review decisions made by institutions/ agencies because the people that work within those agencies are the experts (court has no place in interfering in another sector like education, environmental control, etc. )
-Canada rejects this: our courts WILL review these decisions
Define the two tracks administrative law/judicial review in this context follows.
Asseses institution’s decisions based on correctness or reasonableness
If decisions are reviewable only for reasonableness, that means that “reasonable” incorrect decisions can be made: even if it is an incorrect decision, it can be reasonable
-If decisions are reviewable for correctness, how do you measure correctness of a decision? Who decides that? No universal principle for this (correctness in law should be the standard, so the legal framework the agency operates within needs to be examined)
Define Procedural Fairness.
comes out of natural law (what is moral/ethical), in administrative procedures (due process, representation, etc.)
Why is the expansion of the administrative state potentially negative according to Dr. Hamburger?
-Judges/government become systematically biased as they delegate authority to agencies: bias is principle-driven that they don’t feel competent to make decisions themselves and would rather have this done in individual sectors because those experts know more about it: but then they hand their quasi-legislative authority down to agencies
-Agencies follow administrative procedures, however their interpretation of their own rules may go very badly (Pridgen Brothers Case)
Define the Interdelegation of powers.
means that there is no clear cut answer into where power is ultimately derived from: provinces can delegate power to federal powers and vice versa; federal governments delegate their power to tribunals, boards, commission or agency created by a provincial legislature
Define the social purposes on the inter delegation of powers.
-Social purpose of inter delegation: not everything can be dealt with just by government, need for rapid governmental action require faster administrative response than can be accommodated by the necessity of legislative amendment, delegating power allows greater flexibility in applying broad statutory provisions to changing circumstances, it is not the best to have one individual deal with all cases (better to have specific experts in specific fields), everything would crumble if there is no delegation of powers because of the sheer mag
Define the social purposes on the inter delegation of powers.
-Social purpose of inter delegation: not everything can be dealt with just by government, need for rapid governmental action require faster administrative response than can be accommodated by the necessity of legislative amendment, delegating power allows greater flexibility in applying broad statutory provisions to changing circumstances, it is not the best to have one individual deal with all cases (better to have specific experts in specific fields), everything would crumble if there is no delegation of powers because of the sheer mag
Define Artifact of Statute.
?
Define privative clause.
-Court has jurisdiction to review when it is an artifact of statute **; unless the government has written in a “privative clause”: clause that says all of these decisions cannot be reviewed by the courts
Define the two principles of natural justice.
alteram partem (hear the other side), meaning no man should be condemned unheard and allows for a fair hearing
-Nemo sibi judex vel suis jus dicere debet: no person should act as judge on his own behalf or speak the law for his own ends; nemo judex rule ensures that bias is excluded from the justice process
Define certiorari.
a common law principle that means “we wish to be made certain” or to “inform, apprise, show)
-Certiorrai: process of seeking judicial review of a tribunal decision; jurisdiction issue of whether the court has the power to review
Define narrow ultra vires.
applies if an administrator did have the substantive power to make a decision or it was wrought with procedural defects
Define broad ultra vires.
applies if there is an abuse of power or a failure to exercise administrative discretion and impartiality, or application of powers in an irrational and wrong way
Define Nemo Judex Obligations.
right to a fair decision maker, right to know the case against you, right to be heard, whoever hears must decide, right to reasons aligned with law and policy (an explanation of why the decision was made), right to appeal to independent body
