Review Slides Flashcards
What is administrative law?
- A set of rules that regulates how the government administers and enforces laws
- Primarily concerned with the executive branch
Why was admin law created?
Government is taking a more active role in regulating social and economic activities.
Who is subject to admin law?
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.
How do you find out if someone is subject to admin law?
Look to the source of power. If it is a statue or regulation, then it is subject to admin law
What are the six fundamentals of admin law?
- Decision-makers must stay within their jurisdiction
- Decision-makers must exercise reasonable discretion
- Procedural fairness: the right to be heard and obligation of impartiality
- No sub delegation of decision-making powers
- Subordinate legislation must conform to their enabling statute
- Judicial review is always available through superior court
What is jurisdiction? (principle 1)
The scope of authority given to a government body or official. It is granted by legislation or common law
What happens if jurisdiction is not adhered to?
Failure to do so renders the action taken, or decision made, ultra vires
What is discretion? (principle 2)
the power of a government official or agency to choose from a variety of options
Can unlimited discretion exist?
No
What is fettering discretion
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
Can tribunals make rules that prevent a panel from exercising its discretion
No
What are the limits to exercising discretion?
- Relevant factors
- intent and purpose of statutes
- similar cases being treated similarly
- Good faith/proper purpose
What are the sources of fairness obligations? (procedural fairness)
- Common Law
- Enabling statute
- Statutes of general application
- Ontario Statutory Powers Procedure Act
- Constitution
What is procedural fairness?
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.
What is Audi alteram partem?
the right of a person to notice of any decisions that may affect
them and the right to be heard
What is the rule against bias?
the decision maker must only base their decision on relevant
law and the evidence before them
Baker v Canada
facts:
What are the two elements of the obligation of impartiality?
- Individual impartiality: decision-maker must be free from individual bias
- Institutional impartiality: the structure or operation of a decision-making body must not generate bias
Who does Individual impartiality apply to?
All people exercising statutory authority
Are courts and tribunals required to be independent?
Courts yes, tribunals no. Tribunals are instruments of government policy
Who does the statutory power procedures act apply to?
applies to a proceeding by a tribunal in the process of a statutory power of decision
what is a statutory power of decision?
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
Who is protected by the charter?
- 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
Who is bound by the charter?
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.
