Chapter 2 Continued

Question 1

Judicial Review: Substantive Decisions

Answer 1

• To chose between two standards of review, court looks to doctrine of precedent
• If standard not set by doctrine of precedent, court asks:
  
  • Is decision protected by a privative clause?
  • What is tribunal’s expertise compared to court’s?
  • What purpose did government intend tribunal to serve?
  • What is nature of the issue under review?

Question 2

Judicial Review: Procedural Decisions

Answer 2

• Normally on basis that rules of natural justice
  (or procedural fairness) were not followed
• A tribunal is bound by rules of natural justice:
  
  • If the governing legislation indicates it is
  • If court determines it is after considering:
    
    • Nature of decision (was a specific dispute resolved?)
    • Relationship between decision maker and affected party
    • How the decision affected the party’s rights and interests

Question 3

Remedies on Judicial Review

Answer 3

• Court can issue:
  
  • Writ of certiorari: quash an administrative decision
  • Writ of prohibition: orders tribunal not to proceed
    with matter
  • Writ of mandamus: directs tribunal to perform duties correctly
  • Declaration: provides enforceable statement of parties’ rights and obligations

Question 4

Alternative Dispute Resolution (ADR)

Answer 4

• ADR is dispute resolution outside of court
• Litigation:
  
  • Slow, expensive, unpredictable, adversarial
  • Limited remedies, sometimes plaintiff just wants apology or explanation (but see some provinces Apology Acts)
  • Public, records and evidence available for examination

Question 5

Advantages of ADR

Answer 5

• Quicker, maybe cheaper, controlled, cooperative
• Sometimes ADR is mandatory, usually voluntary
• Private and thus confidential
  
  • Thus allows the relationship to continue

Question 6

Types of ADR

Answer 6

• Negotiation: discussion aimed at settling a dispute
• Mediation: mediator assists with discussions aimed at settling dispute
  
  • Mediator’s decisions are non-binding
• Arbitration: dispute resolved by an arbitrator
  
  • Arbitrator’s decision is binding on parties
  • Process may be informal or court-like
• Also Online Dispute Resolution (ODR) in Chapter 19

Question 7

Litigation and ADR Compared

Answer 7