Judicial Review

Question 1

What are the three ways in which judicial review shapes administrative decision making

Answer 1

1. By constraining the exercise of power delegated to executive actors by the legislature and more unusually by constraining some types of exercise of prerogative authority
2. By influencing the procedure used by governmental bodies in making decisions
3. By subjecting the substance of the decisions themselves to judicial oversight to ensure compliance with the law

Question 2

What is the very essence of judicial duty

Answer 2

Marbury v madison 5 US 137 1803
If both the law and the constitution apply to a particular case the court must either decide the case conformably to the law or conformably to the constitution

Question 3

What sort of interpretation should the Charter be given

Answer 3

generous and expansive interpretation (purposive interpretation)

Question 4

What are the two things required in a purposive approach to remedies

Answer 4

1. the purpose of the right being protected must be promoted: courts must craft responsive remedies
2. the purpose of the remedies provision must be promoted: courts must craft effective remedies

Question 5

Why is it inappropriate for a court to purport to retain jurisdiction to oversee the implementation of remedies after a final order has been issued

Answer 5

1. it attempts to extent the court’s jurisdiction beyond its proper role, it will breach the separation of powers principle
2. it will be acting after exhausting its jurisdiction, it will breach the functus officio doctrine which means that once a decision is made, the decision maker cannot reopen it

Question 6

What are the three main roles of the courts

Answer 6

1. They define the precise contours of the division of legislative powers between the federal and provincial governments
2. They rule on legislation alleged to be unconstitutional for violation of the Charter, and in doing so define the syncope of constitutional rights and freedoms
3. The courts exercise de facto supervision over the hosts of administrative tribunals created by Parliament and the Legislatures

Question 7

What is the overarching principle that governs the exercise of delegated authority

Answer 7

it must be exercised within the confines of the delegation itself

Question 8

Who does a duty to be fair apply to

Answer 8

Administrative decision-makers are generally required by the common law to act fairly toward those persons affected by their decisions

Question 9

What are the factors in determining the nature and extent of the duty of fairness owed

Answer 9

Baker v Canada (Minister of Citizenship and Immigration) 1999 2 SCR 817
1. Nature of the decision being mad and the process followed in making it
2. The nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”
3. the importance of the decision to the individual or individuals affected
4. The legitimate expectation of the person challenging the decision may also determine procedures the duty of fairness requires in given circumstances
5. The analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself

Question 10

What are three ways in which review on the basis of procedural fairness is limited

Answer 10

Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall 2018 SCC 26
1. Judicial review is reserved for state action
2. There is no free standing right to procedural fairness
3. Even where review is available, the courts will consider only those issues that are justiciable

Question 11

What are the two forms of judicial review

Answer 11

1. Procedural review - is about the manner in which decisions are reached (the process taken)
2. Substantive review - is about the substance of the decision themselves (the merits of the outcome)

Question 12

What are the two standards of judicial review

Answer 12

1. The strict standard of review is called ‘correctness’
2. the more deferential standard of review is called ‘reasonableness’

Question 13

How to determine the applicable standard of review

Answer 13

Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65
it starts with a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions

Question 14

What are the two ways in which the presumption of reasonableness can be rebutted

Answer 14

1. where the legislature has indicated that it intends a different standard or set of standards to apply
2. where the rule of law requires that the standard of correctness be applied

Question 15

What standard of review applies where the scope of the statutory appeals includes questions of fact

Answer 15

Palpable and overriding error

Question 16

Are administrative decision makers bound by their previous decisions

Answer 16

They are not bound by their previous decisions in the same sense that courts are but they must be concerned with general consistency of administrative decisions

Question 17

What is the test for a reasonable apprehension of bias of lack of independence

Answer 17

Shuttleworth v Ontario (Safety, Licensing Appeals and Standards Tribunals) 2019 ONCA 518
The test is “a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information”

Question 18

What are the three changes in vavilov

Answer 18

1. Rather than presumption expertise, expertise must not be demonstrated
2. A heightened justificatory bar, particular where a person’s liberty is impacted by a decision
3. The revised reasonableness standard endorsed in Vavilov will put into focus the evidence and record on habeas corpus applications, and how prison officials marshal the evidence to support a particular conclusion