Admin Law Checklist-2015

ADMIN LAW CHECKLIST STEP 1: DOES ADMIN LAW APPLY?  Is it a public body making a decision? And is this a procedural issue or a substantive issue? STEP 2: IS THERE A RIGHT TO APPEAL/RECONSIDERATION/REVIEW?  Check the enabling statute (tends to oust common law). Does it refer to appeal, reconsideration, and judicial review? (the enabling statue and the subordinate legislation)  Exhaust all internal review/appeal mechanisms BEFORE proceeding to JR.  Check General Procedural Codes, if applicable (e.g., JRPA/SPPA/ATA).  If YES … is it through internal mechanisms (reconsideration/appeal within the tribunal) or external mechanisms (an appeal to the courts)? o What is the scope of the review (e.g., on a question of law only)? o Any preconditions (e.g., time limits, final decisions only)? o Is it federal or provincial (statute may spell out which court)? o Is the standard of review spelled out in the statute? o What are the available remedies? Are they limited? Can the reviewing decision-maker substitute their own decision? STEP 3: IF NO STATUTORY RIGHT TO APPEAL OR IF RIGHT IS LIMITED = JR  Courts have jurisdiction to review through JUDICIAL REVIEW (s. 96 and Crevier) – through an application to Divisional Court.  Privative clauses page 156- strong/weak  Crevier v Quebec- the constitution implicitly guarantees the authority of the courts to review the decisions of admin agencies for errors of law or jurisdiction and for procedural unfairness



Re-Residential Tenancies Act Ontario [1981] the court suggests a 3-step approach to the resolution of s96 challenge to an admin tribunal’s power o Step 1: historical inquiry into whether the impugned power broadly conforms to a power exercised by a superior, district or county court at confederation o If not, the inquiry will resolve the s96 issue in favour of the validity of the power w/o the necessity to proceed to steps 2 and 3 o if the power is held to be a s96 power at confederation, it must also be w/in the EXCLUSIVE jurisdiction of s96 courts at confederation o Step 2: reached after a yes answer to step 1, is an inquiry into whether the impugned power is a “judicial” power o a power was held to be judicial if it involved (1) a private dispute b/t parties, (2) that must be adjudicated through the application of a recognized body of rules, and (3) that must be adjudicated in a manner consistent w/ fairness and impartiality o Step 3: reached after a yes answer to both steps, is an inquiry into whether the power in its institutional setting has changed its character sufficiently to negate the broad power in its conformity w/ superior, district or county court jurisdiction 

each of the steps are vague and disputable in many situations

 A party seeking to challenge ADM’s action/decision through JR should determine: o Whether the decision-maker (the tribunal) is a public body o Its functions and duties o The sources of its power and funding o Whether the government directly or indirectly controls the body, and

Whether government would have to ‘occupy the field’ if the body were not already performing the function it does. o MacDonald v Anishinabek Police service et el. “part of the machinery of government” Whether s/he has standing to challenge the decision Which court s/he should apply to for judicial review o Provincial superior court or federal- this comes from whether the power in question is prov/fed Whether the app for JR is within the time limits – any delay or missed any specified deadlines- ct can extend Whether the party has exhausted all other adequate means of challenge Whether the remedies available address “success” o

o o

o o o

STEP 4: REMEDIES—WHAT ARE YOU SEEKING?  Substantive Defects: writs, declaration, private remedies (money/damages)  Procedural Defects: quashing the decision, Charter remedies Remember that the court may still deny remedies based on discretionary grounds. STEP 5: DISCRETION TO DENY THE APPLICATION FOR JUDICIAL REVIEW pg 213-216 o Availability of alternative remedies – stat appeals from the enabling legislation- Court will always defer to the act o Prematurity- applicant may have good cause for action but the matter is inappropriate for judicial intervention o Mootness – by the time the claim comes before the court it will fail to have significance for the applicant o Delay- delay in commencing and failure to adhere to time limits o Misconduct of applicant- can deny a relief if the person seeking has behaved badly

o

o o

Waiver – relief may be denied to an appl on the basis of waiver or acquiescence (know rights but not enforcing) Balance of convenience – if other avenues of recourse are available Standing (i.e., public interest) pg 202  For individual interest it must be that the rights and interests of that person are directly affected. 1. Canadian Council of Churches v Canada (Minister of Immigration and Employment) issued a 3 part test for public standing: 1. serious issue has been raised 2. it must have a genuine or direct interest in the outcome of the litigation 3. there must be no other reasonable and effective way to bring the matter to court 1. seriousness encompasses both the importance of the issue and the likelihood of their being resolved in favour of the applicant 2. this relates to the experience and expertise of the applicant in relation to the subject matter of the litigation 3. whether there is a more appropriate applicant

When a duty of fairness is not owed (exceptions/limitations) 1. The duty does not apply to investigations or advisory processes—it applies to decisions. 2. The duty does not apply to legislative decisions/functions  Includes policy decisions  Includes subordinate legislation  Cabinet and ministerial decisions may be exempt … BUT need to balance this exception with the question of whether individual’s rights, interests/ privileges are at stake. 3. The duty does not apply to public office holders employed under contracts. 4. The duty may be suspended or abridged in the event of an emergency. 5. Interest under section 7 of the Charter that is purely economic is not enough. o

Are you challenging procedural or substantive defects? Procedural issues-The duty of fairness Procedural step 1: determine whether procedural fairness is required? o The trigger/ threshold test—is a duty owed?

Procedural Step 2: If fairness is owed, what is the content of the duty- what does “fair” look like?



To determine the content of procedural fairness, look at the SOURCES OF PROCEDURAL FAIRNESS  The enabling statute o Generally, if there is an enabling statute, then that is where you go to determine the content of the duty. o Check any regulations or rules made under that statute. o Statute can oust what the common law would provide, but statutory language must be very clear in order to do so. o Even clear language could be set aside in a provision in a statute if it violates a Charter right.  A general procedural statute/ special provincial level statutes o Ontario Statutory Powers Procedure Act (SPPA)  Common law (if the statute is silent or vague) o Where the enabling statute is NOT a complete procedural code or it is silent, or only provides for a minimal procedure or expressly denies certain procedural safeguards, the duty to act fairly may be prescribed by the common law. Applying Baker: The 5 contextual considerations under the common law 1. The nature of the decision being made and process followed in making it 2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates 3. The importance of the decision to the individual or individuals affected 4. The legitimate expectations of the person challenging the decision 5. The choices of procedure made by the agency itself  The Constitution, the Charter, and the Canadian Bill of Rights o Charter, s 7: Cases involving life, liberty, and security of the person must be made in

accordance with principles of fundamental justice (Singh’s 3 questions). o Bill of Rights: Federal actions involving life, liberty, security, and enjoyment of property entitled to due process; determinations concerning rights and obligations must be made in accordance with principles of fundamental justice.  Legitimate expectation o Procedural fairness may be imposed where otherwise would not have been. Specific Content issues:  The Right to be heard o Notice: timing, sufficient content and form, manner of service o Evidence—Disclosure (before hearing): not absolute and subject to exceptions (privilege, medical, national security, informants, commercially sensitive information) o Evidence—Admissibility: tribunals not bound by law of evidence (unless statute says otherwise) o Timeliness and Delay in proceedings o Oral hearings: not necessarily required, but ask what’s at stake? (Credibility) o Right to counsel: not absolute—is it a right to state funded counsel or just to be represented? (Seriousness, complexity, capacity of self rep) o Right to be present o Right to call and cross-examine evidence o The duty to give reasons: required where decision is significant or where statutory right of appeal and “other circumstances” as per Baker (open ended) Right to an unbiased decision- maker  Test: Reasonable apprehension test (Liberty)  Individual

Antagonism during the hearing Association between party and decision-maker Involvement of decision-maker in earlier stage of process o Prejudgment by decision-maker o Monetary/other personal interest Institutional (Lippe) o Closeness between an agency/tribunal and government o Sub-delegation o Intra-agency consultation o Consistent decisions and guidelines o Multiple and overlapping functions (counsel, decision-maker Lack of Independence (Valente, Matsqui) o Security of tenure—basis for removal o Financial security—process and fixed rate o Administrative control—assignment of cases and resources o o o





Procedural Step 3: If there is a procedural breach, what is the remedy? Procedural Breach = CORRECTNESS—no standard of review analysis 1. The remedy is to quash/void the original decision  Based on Cardinal v. Kent: Right to a fair hearing is an “independent, unqualified right,” the breach of which always renders a decision invalid (regardless of the result being right) b. The remedy may be a Charter remedy (if available)

Substantive- Decision/ Reasons and the Standard of Review Substantive step 1: Categorize the nature of the issue This question raises an error of ___________? (fact, law, jurisdiction, etc.) Substantive Step 2: Case Law re Standard of Review Determine whether existing case law applies to determine what standard has been applied to that issue/question in the past.

Substantive Step 3: If no clear jurisprudence= Standard of review analysis

 REASONABLENESS or CORRECTNESS?  “Default is reasonableness”  Use Dunsmuir and the standard of review analysis to determine the applicable standard.  Also, identify any relevant post-Dunsmuir approaches like proportionality (note the recent decisions).  Consider the 4 contextual factors in the standard of review analysis (1) Privative clause: Strong or weak? Existence of privative clause usually leads to reasonableness standard. Statutory right of appeal can lead to correctness and reasonableness. Page 156 (2) Expertise of the decision-maker and the tribunal as a whole. (3) Purpose of the act as a whole and the provision in particular. (4) Nature of the problem: Question of law, question of fact, question of mixed fact and law, policy questions, discretionary questions.  NOTE: May not need to go through all 4 factors. Substantive step 4: Look at the decision  Is the decision reasonable or correct? Apply the twopart test (reasons and outcome)

(1) Reasons • Do they justify the decision by using transparency, intelligibility, and justifiability of the process of reasoning/decision making … • that all audiences—counsel, affected persons, and especially the losing party, reviewing courts, other agencies, and the general public—can understand? (2) Outcome • Do they illustrate that the outcome is also reasonable when, as is often the case in administrative decision making, more than one reasonable result is possible? Substantive step 5: Remedies  Prerogative Writs o Certiorari (to quash or set aside a decision) o Prohibition (to order a tribunal not to proceed) o Mandamus (to order the performance of a public duty) o Declaration (states the legal position of the parties and the law applying to them) o Habeas corpus and quo warranto (release of those unlawfully imprisoned)  Private Law Remedies o Money/damages o Monetary damages for Charter breaches o The special tort of misfeasance in (or abuse of) public office