The grant of authority

Question 1

What is delegating

Answer 1

Assgning power from parliament to the executive

Question 1

What are the branches of government

Answer 1

Parliament
The executive
The jduciary

All have some sort of impact on eachother

Question 2

Why does delegation exist?

Answer 2

Becaise the legal system is so complex and theres so much to do
The world requires an adaptive mechanism and the leg is too slow.
Executive allows for government to adapt to the changing views of society and allows for efficiency

Question 3

Legislative intent as the polar star

Answer 3

Vavilov
Parlioamentary sovereignty represents the will of the ppl
The legislature can make/ unmake any law that it sees fit, provided that it’s within the limits of the Constitution.
They cna also limit judicial interference as long as they dont completley outst judical review

Question 4

Who can authority be delegated to and who delegates this authority?

Answer 4

The cabinet
Ministers
Boards

Delegated by: parliament

Question 5

What types of powers can be delegated?

Answer 5

duties
Discretion
Policy making
Judicial decision making
Subordinate legislation

Question 6

Authority is delegated by the statute

Answer 6

Shows the mandates/limits boundaries
Statute has to make it mandatory by saying shall instead of may.

Question 7

What is sub delegation

Answer 7

When parliament authorises power to someone/a body, u cant just assign that power to someone else
However, the legisalte can expressly allow for sub delegaiton or imply it

Question 8

How can sub-delegation be implied, state case

Answer 8

Bridge v the Queen

Facts: Concerned the City of Hamilton Act that set certain times for gas stations to be open.
Provided the city with the authority to issue permits to remain open outside of those set-out hours.
The city issued a bylaw that sub-delegated the issuance of the permits to the city clerk.
This bylaw specified the authority of the clerk, ie. Cap of permits etc.

Argued: The scheme is outside the boundaries of the act because the city has impermissibly subdelegated the power to the city clerk.

Held: Because the bylaw was specific enough about the boundaries that the city clerk could issue permits, it had complied with the requirements of the Act.
The city exercised the power conferred to it through a specific person.

Question 9

Sub delegation within a ministerial office

Answer 9

Also known as the catriona principle

Provided for in s24(2) of the interpretation act
Minister has authority to subdelegate to officers

Question 10

Whats a duty

Answer 10

Authorising the power to actually do something,ie. granting of licenses

Question 11

Whats discretion

Answer 11

Granting the decision maker th power to exercise their judgement over a specific outcome

Question 12

What does discretion allow for

Answer 12

Adaptability
Responsiveness
Flexibility

Question 13

Is discretion absolute
state case

Answer 13

No its not

Roncarelli v Duplessi
No discretion to deny a permit based on reliious grounds, that was arbitraty and unreasonable and outside the authroised disretion

Question 14

Can a past parliamtn bind a future parliament?

Answer 14

No
West lakes
If a parliament said that a statute was permane t, the next parliament could ccome and remove that statute

Question 15

How does parliamentary soverenty extend to the courts

Answer 15

Legislation superseeds common law
s91-s92- no interdelegation of statutory powers

s96- federal governor general appoints all superior court judges.

Question 16

The test to distinguish whether the authority is that of a s96 court of if its actually capable of being delegated

Answer 16

residential tenancies

Does the power “broadly conform” to a power exclusively exercised by a superior court at the time of Confederation?
Is the power a judicial power?
Is the power necessarily incidental or ancillary to a non-section 96 power?

Question 17

what are the steps doing

Answer 17

Reference residential tenancies

Held: Steps 1 and 2 aim to identify potential violations of section 96.
Step 3 looks to see if the power exercised by the tribunal has been altered enough by its context to allow it to be constitutionally valid.

Question 18

Go through the three steps

Answer 18

Reference re residential tenancies

Question 19

Step 1

Answer 19

Step One:

Dispute Resolution Process:
The Director of Residential Tenancies has the power to handle disputes between landlords and tenants.
The Director can look into problems, help settle issues, and make decisions about things like ending leases, ordering repairs, or giving tenants back their homes.

Appeals:
If someone disagrees with the Director’s decision, they can ask for a new hearing before a Residential Tenancies Board, which can make the same kinds of decisions as the Director.
If they are still unhappy, they can ask the Nova Scotia Court of Appeal to review the case, but only on issues related to legal questions or whether the Director/Board had the authority to make a decision.

Exclusive Jurisdiction:
Only the Director and the Board are allowed to make decisions about landlord-tenant issues under this law. Regular courts cannot intervene, except for limited situations like formally recording orders or handling appeals.

Question 20

Step Two

Answer 20

Does the tribunal do things that look like it’s exercising the powers of a court?
Must look at the nature of the dispute: The more the statutory delegate addresses broader social policy concerns in its decision-making, rather than considering the legal issues between parties, the less likely will it be considered to be exercising a judicial function.

Question 21

Step 3

Answer 21

Step Three:
Statutory tribunals can exercise some powers within section 96 if those powers are exercised as a result of a legitimate administrative function.

MacMillan Bloedel Ltd. V. Simpson [1995] 4 SCR 725

Issue: Whether Youth Courts could try youths for contempt – including contempt of superior courts.

Held: Because this power was exercised in furtherance of the novel policy objective of youth justice, it was permissible for the inferior tribunal to exercise it.

Question 22

What are privative clauses
State case

Answer 22

Clauses that prevent any sort of appeal

Crevier
Held: It is unquestioned that privative clauses, when properly framed, may effectively oust judicial review on questions of law and on other issues not touching jurisdiction.
A tribunal could not constitutionally be immunised from review of decisions on questions of jurisdiction.

To give a provincially-constituted statutory tribunal a jurisdiction in appeal on questions of law without limitation, and to reinforce this appellate authority by excluding any supervisory recourse to the Quebec Superior Court, was to create a s. 96 court.

Question 23

Jurisdiction over consitutional questions
state case

Answer 23

R v Conway
If has power to decide q of law, has power to determine con questions
therefoe it has the power to grant con remedies

Question 24

Caveat to this
state case

Answer 24

Nova scotia workers v MArtin

Cannot make declarations of invalidity

Question 25

What’s the hierarchy

Answer 25

Constitution
Statutes
Subordinate Legislation
Crown Prerogative
Subordinate Instruments
Case Law

Question 26

General principles

Answer 26

Administrative decision-makers need authorization to act or to exercise powers:

Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513 p. 16

Held: Authorisation can be by statute, subordinate legislation, or subordinate instruments.

Powers can be express, or implied/necessarily incidental to the express powers:

ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4 (CanLII), [2006] 1 SCR 140

Held: For the doctrine of jurisdiction by necessary implication to apply, there must be evidence that the exercise of that power is a practical necessity for the Board to accomplish the objects prescribed by the legislature, something which is absent in this case.

Policy/Purpose statements are not jurisdiction:

Reference re Broadcasting, [2012] 3 SCR 489 p. 22

Held: Declarations of policy cannot serve to extend the powers of the subordinate body to spheres not granted by Parliament in jurisdiction-conferring provisions.

Question 27

The federal process

Answer 27

Known as promulgation
Regulations made by bodies that parliament has authoritsesd

Question 28

Review of subordinate leg

Answer 28

Portnov v. Canada (Attorney General), 2021 FCA 171.

Held: Regulations are just an instrument with legal effect that is the product of administrative decision-making.
Thus, the Vavilov standard of review applies.

Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64

Held: People challenging regulations must show that a regulation is irrelevant, extraneous or completely unrelated to the objectives of the governing statute.

Question 29

Perogative power

Answer 29

Reviewable based on justiciablity
Huspactch

Question 30

How are subordinate leg and subordinate instuments reviewed

Answer 30

Like normal reg but also the purpsoes of the main leg play a big role

Question 31

Policies and guidelnes

Answer 31

Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 p. 32.

Held: Administrative policies are considered soft law: It is not law for the purposes of the hierarchy of laws.
Allows for a lot of deference because it’s political: The courts are slow to intervene.

Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198

Held: A decision to make an administrative policy can be reviewable if it affects the legal rights or practical interests of a challenger.
If there are procedural guidelines or rules, parties can expect them to be followed or to receive an explanation as to why the guidelines were not followed.
Example: If you were told that you had an opportunity to review the investigator report and they failed to allow for that, that can give rise to a legitimate expectation.

Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299. p63

Held: Not free to adopt mandatory policies that leave no room for the exercise of their discretion.
If an administrative decision-maker treats themselves as bound by a policy or guideline, they are fettering their discretion and that is prima facie unreasonable.

Question 32

S96 Analusis

Reason for s96 analysis.

Answer 32

Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27

Held: For SC to maintain national unity and preserve the rule of law, the legislature cannot interfere with the superior court’s jurisdiction as this would undermine them.
The threat to both of them can come from inferior courts and tribunals if s96 powers are afforded to them.

Question 33

2 tests

Answer 33

Residential tenancies
Core jurisdiction

Question 34

Rationale for both

Answer 34

Aim: To determine whether a grant of jurisdiction is constitutionally infirm, a court must first properly characterise the jurisdiction being transferred.

The core jurisdiction test exists to prevent the superior courts from being impaired to the extent that they can no longer fufill their constitutional role.

Question 35

Considerations for core jurisdiction test

Answer 35

6 non-exhaustive factors
The scope of jurisdiction
Whether its exclusive/cocurrewnt
Monetary limit
Mechanism for appeal
Case load on superior court
Important societal objective.