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Administrative Law > Unit 1 > Flashcards

Unit 1 Flashcards

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1
Q

What are the types of law? (4)

A

Common and Statute;
Public and Private;
Statutes and subordinate legislation;
Substantive law and procedural law.

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2
Q

Define Law

A

Rules made by a body of elected representatives, their delegates, or a court, using procedures that are prescribed by law.

Laws prohibit people from doing certain things and punish those who break them.

Laws create rights and a framework to ensure that the activities of contemporary society are carried out honestly and effectively.

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3
Q

Who makes laws?

A

Elected representatives
Their delegates
Or a court

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4
Q

What two things are laws intended to do?

A
  1. Prohibit people from doing certain things punish those who break them; and
  2. Create rights and a framework to ensure that the activities of contemporary society are carried out honestly and effectively.
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5
Q

How do laws differ from other rules?

A

Compliance with rules is a more a matter of choice.

Compliance with laws is required.

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6
Q

What prevents governments from making any law that they want?

A

Rule of Law, i.e. the supreme law, i.e. the Constitution.

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7
Q

What is the rule of law?

A

The supreme law that governs all law making. Limits activities of government to what has been delegated to them.

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8
Q

Why do we need rule of law? i.e. what does the Constitution do?

A
  1. prevent arbitrariness or even worse, tyranny
  2. prevent government from acting impulsively (i.e. making rules as they go)
  3. keep individuals or groups from using powers that they do not legitimately have
  4. establishes basic institutions of government
  5. reflects fundamental values of society
  6. determines values and goals that other laws must reflect
  7. governs the validity of other laws
  8. requires that like situations be treated alike
  9. different situations should be appropriately distinguished from each other
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9
Q

What two parts of the Constitution determine the validity of laws?

A
  1. Division of Powers (ss. 91-95); and

2. The Canadian Charter of Rights and Freedoms

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10
Q

What does the Division of Powers (ss. 91-95) of the Constitution do?

A

Distributes law-making powers to the federal and provincial governments based on subject matter.

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11
Q

What does the Canadian Charter of Rights and Freedoms do?

A
  1. Sets out a list of fundamental rights and freedoms belonging to all citizens/persons in Canada

Note: rights and freedoms are not absolute.

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12
Q

What does it mean to state that “rights and freedoms are not absolute”?

A

Courts can make laws that infringe on a right or freedom granted by the Charter if the court can justify it.

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13
Q

What are some of the fundamental freedoms afforded by the Charter of Rights and Freedoms?

A
  1. democratic or political rights
  2. legal rights
  3. mobility rights
  4. equality rights
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14
Q

What are the branches of government?

A
  1. Legislative
  2. Executive
  3. Judicial
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15
Q

What are the law-making powers of the Legislative branch?

A
  1. power to legislature, i.e. pass statutes (aka acts) and make regulations
  2. delegate powers to ministries, agencies, boards and commissions
  3. delegate law making powers to territories
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16
Q

What are regulations?

A

Detailed rules that flesh out the meaning and requirements of a statute.

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17
Q

Who passes regulations?

A

Regulations are can be passed by federal and provincial legislature, but they normally pass a law to delegate the ability to pass a regulation to the executive branch, i.e. the Cabinet or Cabinet minister.

Occasionally this could be delegated to an unelected body such as an agency, board or commission.

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18
Q

What are the law making powers of the Executive?

A

The executive branch enforces the laws.

The executive branch includes government departments, and police forces.

19
Q

What are the law making powers of the Judicial branch?

A
  1. Resolves disputes
  2. Interprets laws
  3. Strikes down laws that are passed without proper authority
20
Q

What are the 3 levels of government?

A
  1. Federal
  2. Provincial and Territorial
  3. Municapal
21
Q

Describe the Federal level of government and laws that it makes.

A
  1. deals with matters of national concern in areas that require national uniformity (areas that are deemed to be important across the country)
22
Q

List matters that would be considered of national concern?

A
  1. criminal activity
  2. monetary policy
  3. foreign relations
  4. national defence
  5. interprovincial and international trade and commerce
  6. interprovincial and international transportation
23
Q

Describe the Provincial and Territorial level of government and the laws that it makes.

A

Deals with regional or local matters.

Provincial laws are passed by the provincial legislature or Legislative Assembly.

24
Q

What issues are deemed to be local and therefore the responsibility of Provincial and Territorial government?

A
  1. business activities within the province
  2. regulation of professions
  3. creation of local infrastructure
25
Q

What is considered local infrastructure?

A
  1. water treatment plants
  2. sewer systems
  3. creation of municipal government
  4. establishment of municipal boundaries
  5. land use planning
26
Q

What gives provinces the power to pass laws?

A

Section 92 of the Constitution Act, 1867.

27
Q

How are provinces different than territories?

A

Provinces are given the power to make laws through the Constitution Act, 1867.

The Federal government gives Territories power to make laws; similar to the way provinces delegates power to municipalities.

28
Q

What are laws called that municipalities make?

A

Bylaws

29
Q

What confusion exists for law making powers in the Constitution?

A

There is overlapping or unclear law-making authority in the Constitution. The Constitution can be ambiguous about which level of government has the authority to pass laws.

30
Q

4 ways in which laws can be categorized.

A
  1. common law and statute law
  2. public law and private law
  3. statutes and subordinate legislation
  4. substantive and procedural
31
Q

What is the difference between substantive and procedural law?

A

Substantive law deals with the substance of a problem.

Procedural law gives procedure for applying/implementing substantive law.

32
Q

What is the difference between statute and common law?

A

Statute law is made be elected officials. Includes statutes, regulations, territorial ordinances and municipal bylaws.

Common laws are made by courts. Known as judge made law. Courts are required to follow precedent.

33
Q

What is the difference between public and private law?

A

Public law

  1. deals with the structure and organization of government
  2. regulates how the 3 levels of government carry out their responsibilities
  3. governs the relationships between individuals, corporations, other governments with the government and departments and agencies with one another.
  4. includes criminal, constitutional, administrative law and treaties made under international law
  5. dictates how government raises, spends and accounts for money

Private Law

  1. laws the govern how individuals and corporations treat each other
  2. includes
    (a) torts
    (b) contract law
    (c) property law
    (d) family law
34
Q

What is the difference between statutes and subordinate legislation?

A

Statutes are laws passed by elected officials. Subordinate legislation is another word for regulations.

35
Q

What is the Charter of Rights and Freedoms?

A

Documents fundamental freedoms that belong to all persons, including

  1. democratic or political rights
  2. legal rights
  3. mobility rights
  4. equality rights
36
Q

Identify the role of government-appointed boards, tribunals, and agencies.

A

Make decisions on behalf of governments (federal, provincial, or municipal) in areas such as

  1. employment insurance,
  2. workers’ compensation,
  3. labour relations,
  4. utility rate,
  5. communications,
  6. transportation,
  7. oil and gas exploration and development,
  8. gaming,
  9. land expropriation,
  10. immigration, and
  11. property assessment.
37
Q

Discuss the necessity to interpret statutes, regulations, and bylaws.

A

A person wants a someone to adopt their interpretation of a law.

  1. modern life and business is complex with modern technology
  2. the government want to control those complexities
  3. recent legislation has become increasingly complex
  4. the language in statutes can be ambiguous
38
Q

Outline the traditional and modern approaches to statutory interpretation.

A

Traditional approach includes

  1. plain meaning rule (aka literal meaning)
  2. golden rule
  3. mischief rule
  4. grammar rules of construction

Modern approach includes

  1. assume there is no single meaning to a word
  2. assume that there is no evidence to discern what the legislators had in mind
  3. referred to as “contextual and purposive” analysis

Contextual

  1. look at surrounding words, if specific words, phrases or provisions are either not clear, or are clear but resultant consequences are contrary to the norms of justice or reasonableness
  2. look at the statute as a whole
  3. compare to statutes that deal with similar subject matters

Purposive

  1. look at what problem the statute intends to solve
  2. assumes that the interpretation that fulfils the purpose of the statute must be the one that legislators intended

Consequential
9. interpretation leads to a clearly unintended and unacceptable consequence

39
Q

Identify the tools for interpreting statutes.

A

Look at the tools of the act first, before external sources

  1. definitions in the statute
  2. how the word is used in other parts of the statute
  3. explanations of the purpose of the statute (preamble, headings, marginal notes)

External Sources

  1. dictionary
  2. definitions in other statutes, court and tribunal decisions

Statements of General Principal

  1. interpretation act
  2. drafting conventions
  3. drafting maxims
  4. drafting presumptions
40
Q

Describe the plain meaning rule.

A
  1. is the starting point of interpretation
  2. looks only at the words to be interpreted
  3. every word in the statute is deemed to have meaning
  4. a word cannot be ignored, even it appears to be redundant, inconsistent, or inserted by mistake
41
Q

Describe the golden rule

A
  1. a variation of the plain meaning rule
  2. ignore the plain/literal meaning of a word if that meaning leads to an absurd result (i.e. no way that it could be the intention of the law)
42
Q

Describe the mischief rule.

A
  1. developed to avoid overly strict and literal interpretations
  2. requires the court or tribunal to determine what the “mischief” the legislature was trying to prevent by making the law
  3. interpret the provisions in a way that achieves preventing the mischief
43
Q

Describe problems with the traditional interpretation rules.

A

Plain Meaning Rule
- must consider every word, even it appears to be incorrect

Plain Meaning and Golden Rule

  • assumes that legislators means what they said
  • does not allow for external aid to interpretation (not even headings or a preamble, earlier drafts, discussion papers or statements made during debates on the bill)

Mischief Rule
- still no way to know for sure what the legislators intended (i.e. how broad or narrow, e.g. Traffic Act states that motor vehicles cannot be driven on the left side of the road, this is prior to inventing snowmobiles, can snowmobiles be considered a motor vehicle?)

Administrative Law (3 decks)

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