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Admin Law 2 > Review Slides > Flashcards

Review Slides Flashcards

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1
Q

What is administrative law?

A
  • A set of rules that regulates how the government administers and enforces laws
  • Primarily concerned with the executive branch
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2
Q

Why was admin law created?

A

Government is taking a more active role in regulating social and economic activities.

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3
Q

Who is subject to admin law?

A

Anyone exercising a power granted to them statute or regulation
Examples: Government, Universities, Hospitals, Self-regulating professional bodies (LSO) and any entity given power by statute.

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4
Q

How do you find out if someone is subject to admin law?

A

Look to the source of power. If it is a statue or regulation, then it is subject to admin law

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5
Q

What are the six fundamentals of admin law?

A
  1. Decision-makers must stay within their jurisdiction
  2. Decision-makers must exercise reasonable discretion
  3. Procedural fairness: the right to be heard and obligation of impartiality
  4. No sub delegation of decision-making powers
  5. Subordinate legislation must conform to their enabling statute
  6. Judicial review is always available through superior court
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6
Q

What is jurisdiction? (principle 1)

A

The scope of authority given to a government body or official. It is granted by legislation or common law

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7
Q

What happens if jurisdiction is not adhered to?

A

Failure to do so renders the action taken, or decision made, ultra vires

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8
Q

What is discretion? (principle 2)

A

the power of a government official or agency to choose from a variety of options

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9
Q

Can unlimited discretion exist?

A

No

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10
Q

What is fettering discretion

A

When a statutory decision maker rules out options that are available under the law.
Decision makers cannot refuse to exercise their discretion and to consider any factor that is relevant

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11
Q

Can tribunals make rules that prevent a panel from exercising its discretion

A

No

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12
Q

What are the limits to exercising discretion?

A
  • Relevant factors
  • intent and purpose of statutes
  • similar cases being treated similarly
  • Good faith/proper purpose
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13
Q

What are the sources of fairness obligations? (procedural fairness)

A
  • Common Law
  • Enabling statute
  • Statutes of general application
  • Ontario Statutory Powers Procedure Act
  • Constitution
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14
Q

What is procedural fairness?

A

The requirement that a decision maker must give any person whose rights may be affected by a decision REASONABLE NOTICE of the intended decision and the reasons for it, and an OPPORTUNITY TO RESPOND, and must be impartial, even if the function of the decision maker is not quasi-judicial in nature.

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15
Q

What is Audi alteram partem?

A

the right of a person to notice of any decisions that may affect
them and the right to be heard

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16
Q

What is the rule against bias?

A

the decision maker must only base their decision on relevant
law and the evidence before them

17
Q

Baker v Canada

A

facts:

18
Q

What are the two elements of the obligation of impartiality?

A
  1. Individual impartiality: decision-maker must be free from individual bias
  2. Institutional impartiality: the structure or operation of a decision-making body must not generate bias
19
Q

Who does Individual impartiality apply to?

A

All people exercising statutory authority

20
Q

Are courts and tribunals required to be independent?

A

Courts yes, tribunals no. Tribunals are instruments of government policy

21
Q

Who does the statutory power procedures act apply to?

A

applies to a proceeding by a tribunal in the process of a statutory power of decision

22
Q

what is a statutory power of decision?

A

The power or right to make decisions deciding
- legal rights, powers, privileges, duties and liabilities
- the eligibility of any person or party to receive a benefit or licence

23
Q

Who is protected by the charter?

A
  • Section 2,7-12 – Everyone
  • Section 3 and 6(1) – Every citizen of Canada
  • Section 6(2) – Every citizen and permanent resident
  • Section 15 – Every individual
24
Q

Who is bound by the charter?

A

The charter only applies to state actions. Remember private citizens deal with human rights codes.
This can be determined by the nature of the entity or the nature of the activity.

25
Q

What are nature of the activity and nature of the entity

A

Nature of the Entity: If the nature of the entity is governmental or there is extensive governmental control then the actions are bound by the charter. (Example municipalities)
Nature of the activity: If the nature of the activity is governmental then that activity will be bound by the charter but not other activities. (Example Hospital when delivering health services, but not when implementing staffing changes)

26
Q

What does the charter protect/the categories of the charter?

A
  • Fundamental freedoms (s. 2)
  • Democratic rights (ss. 3-5)
  • Mobility rights (s.6)
  • Legal rights (ss. 7-14)
  • Equality rights (s. 15)
  • Official Language rights (s. 16 and 16.1)
  • Minority language educational rights (s. 23)
27
Q

What sections of the charter/constitution outline remedies?

A

Section 24 of the charter and section 52 of the constitution act

28
Q

What does section 24 of the charter provide?

A

Individual remedies and remedies to unconstitutional government actions

29
Q

What does section 52 of the constitution act provide?

A

Statutory remedies and remedies to unconstitutional legislation

30
Q

What are quasi-constitutional laws?

A

Laws that are between constitution and statues. They embody fundamental rights and freedoms.

31
Q

Who’s conduct do Quasi-constitutional laws regulate?

A

Individuals and government

32
Q

What are quasi-constitutional laws based in?

A

common law and statutory law

33
Q

What is the purpose of quasi constitutional laws?

A
  • prevent abusive behaviour
  • uphold human dignity and autonomy
  • ensure fair treatment of individuals
34
Q

What is the test for bias?

A

what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly

35
Q

Natural Justice vs Procedural Fairness

A

The principles of natural justice concern the general manner in which a decision is made while

36
Q

When can tribunals base their decisions on information obtained outside of a hearing?

A
  1. Facts that may be accepted without proof
    - facts that are common knowledge
    - facts that can be easily confirmed
  2. Reliance on legal authorities
    - if a decision maker finds other facts from a legal authorities

Admin Law 2 (2 decks)

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