introduction Flashcards
What is a private act
Acts that corporations or individuals carry out by means of their status as a legal entity, ie entering into a contract
Public bodies can also carry out private acts
What is a public act
Acts that cant be carried out by corporations, but rather by the state or public bodies thay have been granted the authority to do so
Why can public bodies carry out public acts
The power is legitimate due to the democratic principle
What is the democratic principle
State case
Re Secession
Its a fundamental value of the consitution
reflects the will of the people
democracy cannot exist w out the rule of law
What is administrative law?
Its a subset of public law
It governs public acts
Regulates the relationship between the government and the goverened
Regulates relationship between the jud and exec by implementing rules on the exercise of public power and mandating that the court enforce these rules
What are the fundamental concepts in admin law?
- RoL
- Parliamentary Sovereignty
- The crown
- Separation of powers
- Jurisdiction/ultra vires
- Procedural fairness
- Judicial review
- section 96
- Private v Public Acts
RoL
Re secession
RoL creates stability, predictability and order
Shields individuals from arbitary state action
Three requirements of RoL
- The law is supreme over individuals and the government
- Must be able to ascertain what the law is
- Must be a legal rule for the exercise of a power
Parliamentary sovereingty
Parliament can unmake or make any law that it sees fit, within the con bundaries
this reflects th will of the ppl and democratic principle
Limits to Par sov
- Consitution act
- Charter rights and s35 aboriginal treaty rights
- s96 allowing for judicial review
The crown
s17- the crown dont hold as much power as they used to
Roles
Royal reccomendation
Royal consent
Royal assent
Separation of powers
state case that says roles
Ontario v Criminal lawyers
leg makes law
exec applies law
judiciary oversees the law
Does canada have a strict separation of powers?
State instances where they intertwine
No they dont, not in water tight containers
Leg has parliamentaty privillege
cabinet privilege extends to documents being bought into court
Judicial review of exec and leg by s 96
Why does separation of powers exist?
State case
Greenhouse gas pollution
1. Insitutional competence- so expertise is divided amongst the different branches
2. To balance power so that one branch doesnt hold too much power
Other reasons for sep of powers
Efficiency
Accountability
Checks and balances
What is jurisdiciton?
The scope of authority given to a particular perosn
state cases on jursidcition
Trinity western v Nova scotia
Dunsmuir
Vavilov
Trinity western v Nova scotia
Only allowed to issue licenses in NS, issuing in other areas considered ultra vires
Dubsmuir
Juriscition is the authority to exercise a powr,ie. whetehr or not a tribunal has the authoruty to exercise that power
VAvilov
Jurisdcition is just a q of law and therefore subject to correctness
Procedural fairness
state 2 principles and explain and name the case
Audi alteram partem: Must know the case thats against them
Nemo Jude in causa- cannot be a judge of their own cause
Baker
List the 5 baker principles
- Nature of the decision being made
- The dm statutory scheme
- impact of decision on individual
- Any legitimate expectations the individual had over the process
- The procedure dm chose to follow
What happens when there is a breach of procedural fairness
Decision gets quashed
A deicison is onky a decision if its a fait one
What is an unqualified right under pF
Cardinal
Right to a fair hearing is an independent and unqualified rigjt that anyone under an admin decision is entitled to have
What happens when there is a breach of procedural fairness exception
King
Must look at the proceedings as a whole, if its in steps and the second step effectibely fixed the breach
wont get quashed.
What is JR
DUnsmuit
Supervising the exercis eof authority conferred by stature
But because of leg intending to give that power to the admin tribunal, courts exercise caution and only intervene when necessary
What is JR nor
A trial de novo- have to look at the decision and not the decision that they would have made
What is s96
Crevier
its the basis for JR
Allows for JR in accordance with the RoL
The basis for judicial independence
a clause /statutecannot exclude JR/ shield itself from judicial review
What are the limits of JR
- Wall- Can only JR public authorities exercising public power
- Air canada- cannot review decisions made by public bodies thay are actually private
