Chapter 11 - Using Administrative Decision-making to Protect the Environment Flashcards
Define Administrative Decisions:
Decisions made by government officials or tribunals pursuant to a statute that sets out the decision-making process
What 3 roles can make decisions?
- Government Employee
- Cabinet Minister
- Impartial decision-maker
What procedure are public hearings similar to?
Quasi-judicial
Law governing administrative procedures attempts to balance ____________ and ___________
efficiency, fairness
What is the fundamental procedural concept?
Natural Justice (AKA procedural fairness)
What do the common law rights of procedural fairness do?
They apply and fill any gaps
What are the three main elements of Tribunal Procedures?
- Reasonable notice of proposed decision and key issues against affected parties
- A fair opportunity to be heard, orally or in writing
- An impartial and independent decision-maker
Define Evidence
Facts, objects, and (sometimes) opinions that are presented to decision-maker for the purpose of reaching a decision
True or false: Heresay evidence and opinions are not allowed in tribunals
True
What does the record of tribunal proceeding include?
Includes the decision challenged and all evidence and arguments presented at a hearing
Obtaining party status may depend on __________________
meeting a statutory test (being “directly affected” by a decision)
What may tribunals do if there is no statutory test?
May create their own tests / categories
Tribunals must (as their statutes require) reach explicit _______________
final decisions
True or false: Some tribunals can force unsuccessful parties to pay the costs of successful parties
True
What is a major criterion of assessing costs in tribunal procedures?
Whether the applicant has made a substantial contribution to the appeal and has focused on the important issues
True or false: There is an automatic right to appeal an administrative decision; an appeal must be provided for in the statute
False, there is no automatic right to appeal.
What are the two forums of appeal?
- Appeals to another administrative tribunal
- Appeals to a court
What are two types of appeals?
- Appeals de novo (new hearings where everything is reheard and reconsidered and new evidence or arguments may be presented)
- Appeals on questions of law and jurisdiction (no new evidence, limited to legal arguments)
What has established a number of specialized tribunals to hear appeals from administrative decisions?
Provincial Legislation
What are three advantages of environmental appeal boards?
- Members have environmental expertise
- Less formal procedures
- Usually include a well-developed mediation process
What is the main disadvantage of appeals?
Sometimes (as in Alberta) appeals are subject to approval by environment ministers
Define Substantive Judicial Review:
judicial review of the merits, or substance, of administrative decision-making
Standing for judicial review requires what three things?
- That there is a serious legal issue to be determined that affects the applicant directly
- That the applicant has a “genuine interest as a citizen” in the decision
- That there is no other reasonable and effective manner in which the issue may be brought before the court
What are the two standards of review involved when reviewing an administrative decision?
- Correctness
- Reasonableness
Define Standard of Review:
The depth of the review done by the court and reflects how much deference will be afforded to the administrative decision-maker
What does the court look at when determining which standard of review applies?
Whether the tribunal interpreted its empowering statute and at any relevant cases
What four factors are considered by the court when determining standard of review?
- Privative clause
- Expertise of the decision-maker
- Policy versus technical issue
- Law versus fact
Because procedural fairness involves legal rights, the standard of review associated with judicial reviews based on procedural fairness is always ______________
correctness
A court may find that an environmental decision-maker made a reviewable error on grounds asserted by the applicant by what three determining factors?
- Substantive ultra vires
- Real or apprehended bias
- Breach of procedural fairness, etc.
True or false: There are limited constitutional grounds for judicial review in environmental law
True
Government may establish _____________ into environmentally sensitive topics
public inquiries
When do public inquires often appear?
More often arise when environmental problems emerge or disasters occur
True or false: Public inquiries operate independently of governments
True
