Chapter 9 Flashcards
administrative law - what kind of law?
a subset of public law that aims to regulate the relationship between the government and the governed and serve as a check on government power
administrative law - what does it represent?
represents the body of general principles, including constitutional limitations, that shape the exercise of such power by public authorities
administrative law - what kind of relationship does it deal with?
one of the three basic areas of public law dealing with the relationship between government and its citizens; the other two are constitutional and criminal laws
administrative law - what does it ensure?
ensures that the government actions are authorized by parliament or by provincial legislatures and that laws are implemented and administered in a fair and reasonable manner
administrative law - what is it based on?
based on the principle that government actions must (strictly speaking) be legal, and that citizens who are affected by unlawful government acts must have effective remedies
administrative law - what does it maintain?
helps maintain public confidence in government authority
administrative law agencies - what are they involved in and how do they affect the public?
Administrative agencies take on many law-making powers from provincial and federal governments. They are involved in almost every area of government activity; they also oversee building permits, workerâs compensation, farming regulation, interprovincial trade, and various administrative tribunals
administrative law - how does it control government activity?
Elected politicians may pass any laws they please as long as they do not infringe upon the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms, nor attempt to regulate legislative activity reserved for another level of government. Administrative authorities are also subject to these limitations, they only have the authority that has been given to them
administrative law - delegating legislation
defines the powers given to the agency (or minister), it also outlines rules for exercising those powers
administrative law - obligations upon tribunals
certain common law principles impose limits or obligations upon tribunals; the best example is the principle that administrative authorities must act in accordance with natural justice; this includes certain procedural rules (common law doctrine operates in tandem with any laws relating to the issues being considered)
- administrative tribunals must act within the scope of the powers delegated to them by their empowering legislation
procedural fairness
the third ground of judicial review of administrative action deals with procedural fairness; administrative agencies must follow proper procedure in arriving at their decisions
natural justice - two basic objectives
to ensure that every person whose interests are at risk is entitled to take part in the process before a decision is taken, whether by hearing or otherwise; and, that any decision made by the tribunal is impartial and not biased
doctrine of fairness
an extension of the principle of natural justice, which requires administrative tribunals to act with both substantive and procedural fairness to all parties
natural justice - audi alteram partemmeans rule
âhear the other side; hear both sides; no man should be condemned unheardâ
Requires that parties to a dispute have a fair hearing which includes being given notice of when and where the hearing is to be held, the opportunity to bring a witness, and the chance to cross-examine the witness brought against them; flows from claims that the legal process did not afford both sides the right to a fair hearing of their claims
natural justice - nemo sibi esse judex vel jus dicere debet rule
âno person should act as a judge on his own behalf or speak the law for his ownâ - to exclude bias or the appearance of bias from the proceedings of an administrative body
procedural law in terms of procedural fairness
what constitutes procedural fairness will depend upon the nature of the power being exercised; the party affected; the results of the intended action; and the practicalities of time-consuming procedures.
- in serious cases affecting individuals, such as revoking a doctorâs license to practice medicine, procedures like those found in a court of law will be imposed
rights of appeal - who are they granted by? (individual who comes before court)
often granted by legislation; in other situations, parties may rely on the historic and constitutional ability of the âsuperiorâ courts of law to review the action of âinferiorâ administrative bodies
rights of appeal - the person who is suing
the second factor affecting the ability of individuals to obtain judicial review of administrative action is related to the status of the suing individual; in may cases, the individual is directly affected by a particular decision, such as the termination of a disability pension
the standard of review (& corectness)
courts consider how much deference they must give to an administrative decision maker; courts will generally consider whether a decision was reasonable or correct, depending on the circumstances
- courts will consider decisions of the standard of correctness - the decision of the administrative body must match the courtâs own findings (applies
the standard of review (& correctness)
courts consider how much deference they must give to an administrative decision maker; courts will generally consider whether a decision was reasonable or correct, depending on the circumstances
- courts will consider decisions of the standard of correctness - the decision of the administrative body must match the courtâs own findings (applies in matters relating to jurisdiction or the constitutional division of powers; or on issues that are of âcentral importance to the legal systemâ)
delegation within administrative law
the legal machinery that makes possible the construction of administrative law - the law relating to various boards, commissions, agencies, and tribunals; in the context of administrative law, the term for the transfer by federal parliament and provincial legislatures of some of their legislative duties to non-elected government officials
interdelegation within administrative law *
a constitutionally permitted process whereby the federal government may delegate its powers to a provincially appointed tribunal, commission, or board, or the provincial government may transfer some of its powers to a federally appointed commission, board, or tribunal provided that not all the delegating authorities are transferred and that the receiving commission, tribunal, or board does not transfer the powers to any other body
purpose of interdelegation
1 - the sheer magnitude of the business of government means that not everything can be health with by parliament or a legislature
2 - much of governmental activity is technical in nature, and only broad principles should be contained in legislation
3 - delegating power to an administrator allows greater flexibility in applying broad statutory provisions to changing circumstances
4 - it may not be possible to divide a general role to deal with all cases, which may be more conveniently determined in the discretion of a delegate
5 - the need for rapid governmental action may require faster administrative response than can be accommodated by the necessity of legislative amendment
6 - innovation and experimentation in solving social problems may not be possible if legislation of required
7 - someone actually has to apply legislation, and that person has to have authority to do so
