Remedies Flashcards
What are the types of remedies available
Statutory remedies/appeals through tribunals or cpurts
Perogative writs if all statutory remedies have been exhausted or are unavailabke
Private law remedies- hard to get when decisions are of public nature
What is functus officio
Finished in office, meaning that when dm has made a decison, they cant go back and amend the deicison
Individual would have to go to appeal or seek recourse though courts
Reason for fucntus
Parliamentary sovewreignty
Exceptions
If the leg allows for a rehearing or reissue
The slip rule
Cases on functus officio
Chandler
Paper machinery
Chandler
Once dm has made a decision, cant go back and alter the decision made unless leg allows for it or one of the rules under paper machinery
paper machinery
2 condiitons
slip in the making up of the decision
example: read 6 uears instwad of 8
Theres an error in expressing the manifest intetnion of the court
Exhaustion of lcoal remedies, state case
CB Powell- cannot seek redressfrom the courts unless theyve exhausted eery statutory remedy avaulable
This is the doctrine of exhaustion
Reason
Parliamentary sovereingty
CB powell
The leg intended that the decision be dealt w by thr tribunal and not by the courts, so the courts should not interfere unless absolutely necessary
Exceptions
Name case w test
If the stat remedy is inadequate
Not meaning that the court remedy is preferable or they can get same remedy trhough court
Matsqui
Must consider
Convenience of the alternatiev remedy
Nature of the error
nature of the tribunal ie investigative, adjudicative etc
Stat remedfies- reconsider rehearing
Somestatutes explicitly provide that tribunal has authoruty to rehear case, therefore functus wouldnt apply
Example: OLTA, human rights code
Stat remedies: Internal appeals
Some leg allows for appeals to be held by the board or trinunal-ie IRPA allows for RAD to hear appeals
Stat remedies- supervisor
Some leg allows for a supervisory agent or body to hear appeals- Farm product agencies act
Saswatchtan- weird for a board that made the order to determine about the illegality of the order
What evidence is allowed at appeasl
generally no new evidence unless
New documents that werent available at the time that are vital for the case
Evidence considered for the appeal
Statutory appeals to court
Theres no con right to an appeal from admin decisions
Some have-OLTA/Tourism act
However, just because theres a statutroty appeal route, doesnt mean that there is no right to access JR
Yatar v TD
Leg allowed for appeal only on rule of law to DC
Held: Can still seek JR for q of fact or mixed law and fact.
The discretionary nature of punlic law remedies
State case
Strickland
remedies through perogative writs arew at the courts discretion even if u make a gpod case for them, its their discretion to deny them
Also if u are making acase about a public deicison, courts have th authority to strike your claim due to mootness or time limits/delay etc
What are the perogative remedies
Certiorari
Mandamus
Prohibition
Habeus Corpus
Quo Warranto
These are all discretionary- courts cna choose not to grant them
Certiorar
State case
To make certain
Usually to quash a deicison thats been made
Requries that tribunal set out procedural history and record of the proceedings
Cpursts ensure that the decison was fair reasonable and just
Vavilov
reasonableness on JR requires that leg be respected, leg intwnded that the admin tribunal make the decision
Courts should also bare in mind objectives,ie. access to justice cost efficiency
MAy be required to substitute or quash deicsion
But also may have to allow decision tostay cuz bringing it back for redetermination would waste time and money cux the end result is inevitable
Whats mandamus
To order/ compel the person to carry out their duty they owed u
Apotex states the requirements
Case on Mandamus
vadiati
Iranian man part of terrorist organisation that he disclosed of from the onset waiting 4 years for decision in. pR
requested mandamus and IRCC dsaid no cuxz they issued PF order and delay was fye to his disclosure
balance of covenience reseted ton the applicant
Court said no, this wasnt justified and mandated a deicison be made within 90 dayd
Prohiniton
State case
A order prohibiting a decision or order being made
this is often very rare because it interferes w decision mainh
Halifax- courts have to exercise cautyon and restraint, cant interfere with early stages of dm
HAbeus corpus
Order justifying why citixens are being detaimed
Quo WWarranto
Order contesting someones ability to become part of office
New ammendments
ONtarios JRPA
Federal cpiurts act
Crown liability for damages in contract
Thomas v The Crown
yes, the crown liable for damages in contract cuz the person would be able to get damages if any other public person was carrying out that private ac
Crown liability for damages in tort
Traditional: The king does no wromhg
CL: NO
Canada: Yes, provided for in statite
Statutes that allow for liability in trot
S3 and S8
Is the crown liable in megligence
Yes
Donogue and stevenson principle applies
Just: policy no, operational yes
Imperial tobacco- core polciy obkectibe no, anything else, yes
Just
Facts: Concerned maintaining roads in BC. The plaintiff drove along the highway, and there was a snowstorm.
He was forced to pull over, and as he pulled over, a boulder fell on him and damaged the car.
Sues the province for improperly maintaining roads.
Argument: The decision to not maintain the road was a public decision therefore, negligence does not apply.
Held: The decision to allocate resources was a policy choice, but the maintenance of the road was an operational choice, this is a private act, therefore negligence arises,
Imperial Tobacco
Held: Policy and operation are big concepts that overlap, but this isn’t a great standard to apply.
Must Immunise core policy decisions from private redress, everything outside of this is available for private law remedies.
Core policy decisions: Economic, social and political factors, provided they are neither irrational nor taken in bad faith.
Key case
Nelson v Marchi
Sets out powers of each branch of government
sets out the hallmarks
Paradis Honey
Easy: When crown servants negligently perform acts, ie dangerous driving.
Difficult: When the crown takes a public act.
Paradis Honey 2015 FCA 89 p. 126-129
Held: It is still increasingly difficult to govern the liability of public authorities.
This is because private law tools have been used to try to solve public law problems.
Public authorities are different from private parties in several key ways.
hallmark 1
First Hallmark: Level and Responsibilities of the Decision Maker
P62:
If the decision-maker is close to elected officials or holds a high position, it is closer to a core policy.
Decisions involving public policy balancing are more likely to be considered core policy.
In contrast, decisions made by lower-level employees focused on implementation are less likely to be core policy and may be subject to regular negligence law.
Hallmark 2
Second Hallmark: The Decision-Making Process
P63:
The more a government decision involves deliberation, debate, and input from various authorities, and is meant to have a broad, future impact, the more it will be considered a core policy decision, raising separation of powers concerns.
Hallmark 3
Third Hallmark: Budgetary Considerations
P64:
Government decisions “concerning budgetary allotments for departments or government agencies will be classified as policy decisions” because they are more likely to fall within the core competencies of the legislative and executive branches.
Hallmark 4
Fourth Hallmark: The Decision-Making Process
P65:
The more a government decision weighs competing interests and requires making value judgments, the more likely separation of powers will be engaged because the court would be substituting its own value judgment.
Whats misfeasance in publci office
Intentional tort
High mens rea- must show more than a mere breahc of statutory power or unlawful act
Requirements
Horsman and Morely, Government Liability s. 8:2.
Held:
The defendant must be a public officer.
The impugned conduct involves the exercise of a power or duty associated with the public office.
The defendant acted with malice toward the plaintiff
OR with the knowledge that (i) he or she was acting unlawfully and (ii) that the action would likely injure the plaintiff.
The defendant breached a duty owed to the plaintiff.
The plaintiff suffered damage as a result of the defendant’s unlawful action.
Category A
argeted Malice
Odhavji Estate v. Woodhouse, 2003 SCC 69 p.22
Held: Has to be directed against a particuar person/a group of people.
Nelles v Ontario [1989] 2 SCR 170 p.39
Held: Malice has a wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage.
Horsman and Morley, Government Liability s. 8.12
Held: Higher evidentiary burden: Clear and cogent evidence of malice.
The courts should be slow to find bad faith unless there is no other rational conclusion.
Category B
Knowing Excess of Power
Odhavji Estate v. Woodhouse, 2003 SCC 69 p.22
Held: Involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff.
Ontario (Attorney General) v. Clark, 2021 SCC 18 p.23
Held: The minimum knowledge requirement of this category is subjective recklessness.
Horsman and Morley, Government Liability s. 8.15
Held: The plaintiff does not have to demonstrate malice under this category.
