Judicial Review, Deference

Question 1

Branches of government:

Answer 1

LEGISLATIVE (Senate + House of Commons (Parliament) create & pass laws

EXECUTIVE (Prime Minister + Cabinet)implement the laws

JUDICIAL(SCC+ federal & provincial courts) interpret, apply and enforce the laws

Question 2

Judicial review in the 1990’s

Answer 2

1) Patent Unreasonableness: lots of deference; obvious
2) Reasonableness Simpliciter: deference; reasonable and fair
3) Correctness : concept of law; no deference

Question 3

Non-discretionary

Answer 3

Requires very little (if any) analysis and critical thinking;

Conditions of application in the legislation are met  must render the decision dictated by the law;

Can be (sub)delegated.

Question 4

Discretionary

Answer 4

Requires some critical-thinking and analysis;

Decision-maker has the freedom to decide from a choice of options in the legislation;

Decision making cannot be (sub)delegate – only prep acts can be;

Question 5

3 types of power:

Answer 5

Discrionary, non-discretionary (administrative) and quasi-judicial (adjudicative)

Question 6

First and second meaning of review and re-examination

Answer 6

• reconsider its own decision
• Legislator grants this authority to other decision maker: can be linked to admin authority. Admin body or admin person within same organization.

Question 7

Implied or implicit power

Answer 7

• jurisprudence based
  a) material/clerical error: simple rectification and there is no change is conclusions of decision

b) decision obtained by fraud, decision maker made decision w/o jurisdiction or authorization
- as it never existed
- limitations for using this; need a legit reason

Question 8

Explicit power

Answer 8

a) legislation specifically states power
- w/o specifies decisions
- is rare
b) Re-examination for cause: 154 AAJ; new fact, party could not be heard, etc. Not disguised as appeal, not about legal merits but on specific circumstances listed. Narrow interpretation is it cannot be abused. (art.365 para 2 of act respecting industrial…) also 153 AAJ

c) legislator allows of the re-examination in a very general way

Question 9

Quasi-judicial

Answer 9

Court-like, adjudicative, organization acting like court
-Admin tribunal or admin org acts like a tribunal
-Critical thinking, decisions making, knowledge, experience, expertise
-not delegable
-Respect procedural fairness, but can make whatever dcsn they want
-Binding decisions
-Hearing, adversarial, infringes rights/oblgns, applied to specific person/result of a policy
• 2 first instance courts: SC and COQ
• Judges @ any courts: 10 years’ experience

Question 10

Deference:

Answer 10

Amount of power/respect given to an administrative tribunal’s decision as they have a certain level of expertise

Question 11

Judicial Review

Answer 11

• Judicial review is based on legality. Concerned with whether not it is legally sound.
  o Done by the Ct and only ever done by ct =, looking at decisions rendered by admin, organizations
  o Specifically falls under jurisdiction of Superior Court
  o Federally, Federal Court