Canadian Administrative Law Study Notes PDF

Canadian Administrative Law Study Notes 1. Setting the Stage CB, Chapter 1 What is administrative law about? Administrative law is applicable to the exercise of public authority in manners that impact an individual or group of individuals and, consequently, raise the prospect of review before...

Canadian Administrative Law Study Notes 1. Setting the Stage CB, Chapter 1 What is administrative law about? Administrative law is applicable to the exercise of public authority in manners that impact an individual or group of individuals and, consequently, raise the prospect of review before a specialized tribunal or court The subject matter of administrative law is the law governing and overseeing the implementation and execution of public programs, predominantly at the point of delivery, where they are expected to have their most immediate impact and effect on the lives and rights of individuals The majority of these programs are administered under the authority of a statute. When I think about administrative law, I think about the fact that the government has so many responsibilities and they cannot administer and oversee everything alone. Nowadays, social programs and public services have become so complex and intricate in nature. The government delegates authorities over specific areas, such as immigration, education and so forth, to administrative bodies and tribunals who are experts in these fields and who can handle overseeing any issues that arise in these areas. Canadian Encyclopedia “In a complex modern state, elected representatives are not capable of passing laws to govern every situation. Therefore, provincial and federal governments delegate many of their law-making powers, as well as the power to administer and implement the laws, to administrative agencies. These agencies are involved in virtually every area of government activity and affect ordinary citizens in many ways. Among other things, administrative agencies oversee building permits, workers’ compensation, farming regulation, interprovincial trade”. Institutions of the Administrative State Legislatures In principle, the legislature is the leading public forum where the most vital political choices taken in the name of the electorate are elucidated, deliberated and potentially approved. The function of legislatures seems to have weakened as senior executive bodies have centralized and consolidated their clout by various mechanisms.  Regardless, from a legal standpoint, nearly all public programs derive from a statute enacted by the provincial or territorial or federal legislature to make and generate new legal rights and duties. In addition to deliberating and authorizing the legislation that establishes and creates the program, the legislature will have a function to play in its subsequent administration. Cabinet and Ministers Normally, the Cabinet is made up of several ministers and is chaired by the prime minister or premier, who assigns ministerial duties. The Cabinet espouses strategic policies, sets budgets and passes regulations and orders in council. Members of Cabinet are responsible collectively to Parliament or the legislature for the action of government. NOTE: what is collective responsibility? “The principle of collective ministerial responsibility allows ministers to be frank when they are in private in Cabinet but requires them to support the Government’s decisions in public. As a group, ministers are held accountable to Parliament for their Government’s actions. They may speak about the Government’s policy only after taking these decisions in private with their colleagues” (Government of Canada website, Privy Council Office. 217-12-07). A minister generally obtains accountability for a federal department or provincial ministry that is typically established by statute. The minister is responsible for the execution of powers assigned to them or to the officials who are subject to their discretion. The Cabinet or individual ministers may be empowered to supplement a statute with delegated legislation. The minister, via departmental officials, may also execute discretionary powers that directly impact individuals. Municipalities Municipalities exercise and employ powers that are delegated to them by the provincial legislature, including tax powers. A large number of the programs that frequently impact individuals are administered at the local level of government: police and fire services, schools, parks, garbage collection, etc. Municipal council members and trustees of local school boards are usually elected. The elected members deliberate and pass the bylaws and resolutions at public meetings that expatiate the legislative framework and structure of the programs they administer. Nevertheless, municipalities must adhere to provincial direction and control in these areas: standards may be enunciated by the enabling legislation, ministerial policy guidelines, or by the terms and conditions on which provincial funding is granted. Crown Corporations There are some public services that are offered via Crown corporations and which enjoy a significant degree of autonomy and independence in their day-to-day operations. The purpose of this freedom is to allow them to make commercial decisions without government intrusion or meddling. However, by virtue of the clout of the purse (i.e. public purse = money from government; raised by government through taxes) and other mechanisms, the government can wield substantial influence. These bodies function on the borders and edges of public and private law in that they may compete with privately owned corporations [and their legal relationships with suppliers and customers are regulated and governed by contract], yet, they also obtain governmental traits (i.e. they were established by statute to perform functions that private corporations neglected; they may be financed by government grants; they are in public ownership; etc.). There has been a cutback of governmental operations and as such, many Crown corporations have undergone significant alterations in recent years (i.e. their outright sale (privatization) to private investors (Petro Canada, Air Canada, Ontario’s 407 highway). As apparatuses of public policy, Crown corporations have fallen from favour. Private Bodies and Public Functions Some private bodies gain their legal authority entirely from contract. However, by virtue of the control and clout they exercise over specific activities and the nature of the functions they execute,  private bodies may bear a resemblance the administrative agencies that otherwise discharge governmental functions. The most recognizable illustrations are the governing bodies of many sports. These bodies and organizations establish rules on the affiliation of clubs to the governing body and resolve disputes over club and player eligibility. Another example is the regulatory power of real estate boards; membership in a real estate board is NOT a legal mandate for engaging in the real estate business, but it may be a practical requisite. Universities are also at the fringes of government. They have contractual relations with their employees and students, whose fees/tuition provide some of the university’s operating budget. Nevertheless, almost all universities in Canada function under a statutory framework, execute tasks and functions that are viewed as public in nature and derive most of their funding from government. Independent Administrative Agencies These are the most distinct institutions of the administrative state. Although, some have a considerable history, many emerged after the Second World War with the prompt enlargement of the obligations taken on by government. They are not homogeneous in nature and as such, cannot be easily explained in a few sentences. Even their names fluctuate (for no reason really): boards, tribunals and commissions are the most common Similarities: The independent agencies that are most usually encountered in administrative law have at least four characteristics in common o First, they have a degree of autonomy from the government department with overall accountability for the policy area in which they operate. This implies that the minister cannot direct what decision or verdict they must reach in a matter that is before them. Consequently, the minister is not politically accountable to the legislature for the agency’s individual decisions and choices. That being said, some statutes permit the Cabinet to influence and impact the making of agency decisions, either by issuing a policy directive that the agency must take into consideration or, on appeal, by reversing, varying or remitting a decision of the agency. o The second feature of independent agencies is that those who are liable to be impacted by a decision are granted a chance to partake in the decision-making process by producing evidence and making submissions. Administrative hearings vary a great deal: some are barely distinguishable from those conducted in a court of law (i.e. professional discipline hearings). Others are informal and may be executed entirely on paper. For the most part, procedural openness underlines the validity and legitimacy of administrative agencies and fixes, so to speak, the “democratic deficit” that is inherent in the nature of their member’s appointments and in the lack of direct political responsibility. o Third, independent agencies usually operate at the polar end of the administrative process and procedure (i.e. when a program is applicable to the individual). This may include the rejection of a licence or a denial to rezone. Some agencies also function at the level of policymaking and hold hearings to enable people who are interested to contribute to the creation of a policy that will guide the agency when it decides individual cases. o Fourth, all administrative agencies are specialized. They deliver a specific program or a part one. For instance, labour relations boards certify unions to represent groups of employees and make certain parties do not engage in unfair labour practices that undermine the essential premises of collective bargaining. Some agencies work with one statute; others derive their jurisdiction from several. Compare Courts of law which decide cases across a much broader spectrum of criminal and civil law. Differences: o Decisions made by agencies lie along a continuum that spans from those resembling courts to those that are more similar to the decisions made in the political process. o At one end of the spectrum are agencies that establish individual rights based on past events and occasions or facts, a fairly precise statutory standard, and a restricted degree of discretion that is exercised in the specific situation or circumstances of the case (i.e. human rights tribunals, labour arbitrators, professional discipline committees). o Other agencies have a much more expansive policy-making mandate and are guided more by their comprehension of the broad public interest than by the impact of the decision on an individual or small group of individuals.  o Some agencies look a lot more like courts in their structure: there are opposing parties at the hearing; the decision is made by the members who conducted the hearing purely on the premise of the material presented to them, without the assistance of any staff. o Some agencies have a huge caseload. For instance, the Immigration and Refugee Board, which is in fact the biggest tribunal in the country, determines tens of thousands of refugee and immigration claims yearly, and this comprises of only one part of the board’s jurisdiction. o Independent agencies also significantly vary and alter in the place that they occupy in the overall decision-making process. For instance, some only provide suggestions to a body with final decision-making power. o On the other hand, some other agencies make the initial and sometimes final determination of individuals’ legal rights (i.e. provincial human rights tribunals and securities commissions). o Another important distinction among independent agencies lies in the consequence that their decisions have on individuals. Some can destroy the life of the persons involved. However, many agencies have a less grave impact on individuals (i.e. approval of plan to build a deck on a house). o Ultimately, independent administrative agencies occupy a special status and position, with one foot planted tightly in the sphere of government and the other in the world of law and the judiciary o Agencies are accurately viewed as part of government in that they are responsible for advancing the public interest through their implementation of the program that they administer. On the other hand, like courts, they conduct hearings and may be able to justify their decisions. Independent Agencies or Government Departments? Independent agencies have specific advantages over government departments as makers of administrative decisions. Since, they are shielded from the demands of day-to-day partisan policies, it is easier for agencies to keep an open process and establish longer-term consistent policies. On the other hand, it is convenient for ministers to shed political accountability for individual decisions, particularly in delicate areas of policy, where chances of drawing inauspicious publicity are high. In situations where a legislature enacts a regulatory statute, it is not possible for the legislature to predict or respond to many of the policy inquiries that will come up in the delivery and execution/ implementation of the relevant programs. Thus, expansive discretion is granted to many agencies to permit them to make additional rules or create policies on a case-by-case basis. Nonetheless, it has been a key rule of the Westminster system of government that chief matters and issues of public policy should be made in the name of a minister or by the Cabinet collectively, so that ministers can be held politically accountable and responsible in the legislature for their decisions. One endeavour to settle this involves allotting the responsibility for formulating policy to the political department of government and leaving to the independent agencies the administrative task of applying the policy to individual cases. The fundamental issue is that there is no bright line to separate policy from administration. Independent Agencies or Courts? The primary justifications and rationale for assigning the task of resolving and settling disputes that arise due to the execution of a public program to an independent agency rather than a court are as follows: o Firstly, the character of the decisions made by many agencies is way more governmental than judicial. o Second, judges are not seen as the most empathetic or sympathetic; there are situations wherein people may yearn for others, apart from judges, to make a decision. it may be desirable that persons, other than judges, who have knowledge and expertise, make decisions o Third, many debates are in relation to nominal or small sums. The courts have scare resources and thus, allocating them to deal with the small disputes would be a misallocation of public resources. o Fourth, a more informal process than that connected with the courts may permit more prompt decisions and diminish the need for legal representation. POLITICAL AND ADMINISTRATIVE REDRESS OF INDIVIDUAL GRIEVANCES Because the law presumes a particular prominence in public administration when things have gone wrong, lawyers are usually involved in the design and strategy of institutional arrangements for the examination and review of administrative action about which there is a complaint.  Lawyers who are mainly anticipated to obtain expertise in the litigation of disputes arising from governmental activity and conduct. Legislative Oversight of the Administration Process The participation of legislatures with public programs does not cease with the enactment of the enabling statute. For example, legislation that has been delegated may have to be examined and scrutinized. Nonetheless, it is not possible for the legislature to overlook and keeps tabs of everything going on. The legislature cannot investigate complaints from people due to time constraints, resources and so forth. Every Canadian province has an officer of the legislature called the ombudsman, ombudsperson, citizen’s representative (Newfoundland and Labrador), or protecteur des citoyens (Quebec). The indispensable functions and powers of the office of ombudsperson follow: o First, the ombudsperson has an investigatory role in terms of action taken in the administration of a government organization that impacts individuals. o The ombudsperson has the authority to acquire information/data affiliated with the investigation. o Third, to commence the investigative process, the complainant simply has to file a complaint. o Fourth, unsimilar to other avenues for reparation, the ombudsperson can take into account a wide array of potential errors that may have been committed in the execution of the public program. o Fifth, if the ombudsperson decides that something went amiss, the organization will be asked to offer a remedy, which could include an apology. If the proposal is not acted on, the ombudsperson may report the matter to the relevant committee of the legislature. Nevertheless, since the ombudsperson’s conclusions and decisions are NOT LEGALLY BINDING, any recommended or suggested remedy is ultimately enforceable only via the political pressure that can be applied by the legislature and public opinion. Administrative Remedies Administrative agencies customarily have internal devices for handling with citizens’ grievances. This could just be a matter of requesting the individual who made the decision to reconsider it or discuss it with a more senior person in the agency. Sometimes there are more formal levels of appeal that can be pursued within the agency. Moreover, dissimilar to courts of law, independent administrative agencies usually have an explicit statutory power to re-examine their decisions. If none of these offers an adequate solution, the complainant may need to consider taking the matter to an outside body that is independent of the original decision-maker. In most jurisdictions, this will be the regular courts. Additionally, statutory rights of appeal are now normally available to an appeal tribunal from decisions made by governmental departments about individual entitlements (i.e. appeals from the refusal or revocation of a business licence). Administrative appeal tribunals can usually reassess the whole case subsequent to hearing from the parties and substitute the decision that, in their opinion, the original body ought to have made. COURTS AND ADMINISTRATIVE AGENCIES Public law litigation should be viewed as a remedy of last resort. The cost and expense are high; the outlook of success in court is restricted. In fact, even a person receives a favourable judicial decision, it is still possible that having corrected the legal error, the administration may not alter the substance of the decision that generated the complaint. Original Jurisdiction In some situations, the legislature may not have created an instrument specifically for the purpose of challenging an administrative decision, in which case a person may take her claim against the government directly to court. Also, when the violation a Charter right is raise, a person may seek redress directly from a court under s.24 of the Charter. Generally speaking, an individual can proceed directly to court when an administrative action has violated an individual’s private legal rights by constituting a tort, breach of contract, or some other wrong for which an award of damages may be made or specific relief (injunction) granted. Appeals  Rights of appeal are entirely the creation of statute: courts have no inherent appellate jurisdiction over administrative bodies. Such rights of appeal come in various forms. The most generous provide for an appeal on questions of law, fact and discretion and permit the appellate court to substitute its opinion for that of the agency. Others restrain the appeal to questions of fact and law, while the narrowest are limited to questions of law and jurisdiction. If the court finds that the agency made an error, it can refer the matter back to the agency or reverse the decision and find in favour of the appellant. There is an emerging pattern that, in the absence of compelling justification to the contrary, the legislature will include a statutory right of appeal to a court from administrative agencies where the agency exercises a power to make decisions that limits a person’s common law rights or that refuse a substantial social security benefit. NOTE: As per Canada (Minister of Citizenship) v. Vavilov 2019 SCC 65, reasonableness review is the starting point in all situations. But statutory appeals will now attract correctness review (at least on extricable questions of law). Courts’ Inherent Judicial Review Jurisdiction In the absence of a statutory right of appeal to the courts, the superior courts of the provinces nonetheless have a supervisory jurisdiction over the institutions and officials that administer our public programs. This supervisory jurisdiction was inherited by the Superior Courts from the English royal courts of justice. Since 1970, the Federal Court and the Federal Court of Appeal – which are statutory courts instead of superior courts with inherent jurisdiction under the common law – have exercised essentially total and exclusive jurisdiction over federal administrative agencies. Judicial Remedies of Administrative Law The courts exercised this supervisory jurisdiction via remedies that were available only in relation to public duties/tasks or powers. There were known as the prerogative writs. Four are of particular importance and they include: 1) Certiorari – to quash or set aside a decision 2) Prohibition – to order a tribunal not to proceed in a matter 3) Mandamus – to order the performance or exercise of a public duty 4) Habeas Corpus – determines the legality of a person’s detention Even for federal agencies, the superior courts of the provinces hold their jurisdiction to issue habeas corpus. The Federal Court has only a restricted ability capacity to award this remedy. However, due to its specialized nature, habeas corpus lies outside the mainstream of administrative law. Contrary to awards of damages for the infringement of a private legal rights, the prerogative remedies [and their modern statutory counterparts], are awarded in the discretion of the court on the premise of public interest considerations Further, applicants do not have to demonstrate that the administrative action complained of impacted them in a manner that encroached their private law rights; rather, a court can grant relief on the ground that the applicant was a suitable person to assert the public interest in making certain that governmental bodies do not conduct themselves unlawfully Since the early 1970s, courts and legislatures have greatly simplified the law regarding remedies of judicial review (often by the establishment of a single catch-all application for judicial review) and the accompanying practice and procedure. With the birth of general principles of judicial review of administrative actions, the focus of administrative law moved from the technical aspects of redress to the grounds of view and to making certain that, in determining whether to grant relief, the courts were more concentrated on accomplishing a suitable balance between private rights and the public interest. Grounds of review Where no right of appeal is provided by the legislature, when can a court interpose in the administrative process? There are four principal grounds to Judicial Review: 1) Procedural Impropriety Prior to taking action that may adversely impact the interests of individuals, administrators are commonly under a legal duty to act and behave in a manner that is procedurally fair. For the most part, this usually mandates that they provide prior notice to those likely to be affected and a reasonable opportunity to respond. Impartiality in the decision maker is another characteristic of Procedural Fairness  Judges have developed a great deal of the law defining and delineating administrative action that is subject to the duty to be fair, and the specific substance and contents of the duty in a given context, as a matter of Common Law and, since 1982 (incorporation of the Charter of Rights and Freedoms), under the rubric of the Charter. Further, legislation may prescribe or dictate the procedures to be adhered to by the particular agency, or groups of agencies, in making decisions. 2) Illegality Administrative action that is not authorized or permitted by law has no legal validity. By and large, the legal powers of concern to administrative law are statutory, meaning the courts must decide the scope of the legal powers and duties of the agency by interpreting the relevant legislation. 3) Unreasonableness A legal obligation is imposed on administrators not to execute or administer their powers unreasonably. This duty has emerged rather recently as a general principle of judicial review. If an administrative agency interprets ambiguous language in its enabling legislation, this interpretation must be reasonable. Equally, a lack of reasonableness is a ground of review (i.e. you can bring judicial review of the exercise of the discretionary power). Similarly, when administrative action violates a Charter right, it may justified (saved) under s.1 of the Charter as a reasonable limit prescribed by law. 4) Unconstitutionality Since 1982, when the Charter was adopted, it has become more and more common for lawyers to frame court challenges to administrative action in terms of both the Common Law and the Constitution. I.e. if the Immigration and Refugee Board rejects a claim for refugee status, this could be challenged on both the ground it was made in violation of the common law duty of fairness and on the premise that it constitutes a denial of liberty or security of the person (not in accordance with the principles of fundamental justice) contrary to s.7 of Charter. Two points must be made in relation to the relationship between administrative law and constitutional law. First, administrative action may always be challenged in a court on the basis that it infringes a provision of the Constitution. An administrative agency is not capable of doing what a legislature lacks the constitutional competence to authorize or permit. Second, both constitutional law and administrative law are branches of public law and their concerns overlap. As such, it is vital that the standards inflicted by constitutional law are informed by prior experience at the level of administrative law. THE RULE OF LAW AND THE ADMINISTRATIVE STATE The rule of law essentially has no generally agreed meaning as applied to law and administration. The main idea = government should be subject to law. Dicey and the Liberal Idea of the Rule of Law The most critical aspects of Dicey’s definition of the rule of law are: (1) That no one should be made to suffer except for a clear breach of the law; (2) That government and citizens alike are subject to the general law of the land; and (3) That the law of the government should be administered in the ordinary courts and not in a specialized system of administrative courts. The first element has been used to challenge the statutory grant of broad discretion allowing public officials to limit individual freedom of contract and property rights. The main arguments against such powers are: i) they may be employed to discriminate improperly against or to prefer specific individuals or groups, ii) it is challenging to hold officials democratically liable for such essentially discretionary decisions, and iii) people should be capable of planning their lives in correspondence with established and recognized rules of general application Dicey’s definition of the rule of law impacts public law: “in the common law world, there is no distinct body of public law that applies to relations between individuals and the state (i.e. government) and which is administered outside the “ordinary courts”. Dicey’s assertion has provided a rationale for the exercise by the superior courts of their supervisory jurisdiction over administrative agencies on basis of procedural unfairness and illegality, even when  the legislature has apparently expressly excluded judicial review. Courts have viewed the authority of government as legally limited and restrained, and the judiciary as the body ultimately responsible for establishing and delineating those constraints. o The Court in Crevier v. A.G. of Quebec 2 SCR 220 held it is beyond the constitutional competence of provincial legislatures to eliminate the superior court’s regulatory jurisdiction over administrative agencies Imbedding the superior courts as the arbiters of disputes between individuals and the administrative institutions of the state has given pre-eminence to common law patterns of thought in shaping the legal framework for public programs. The Functionalist Critique The Functionalist condemnations of the liberal version or perspective of the rule of law, as suggested by Dicey, are threefold: Firstly, some writers contested the historical exactitude of Dicey’s affirmations. They questioned if the rights of English people were every really subject to general law and not to official discretion and that in England there existed no unique body of public law for regulating legal relations between the citizen and the state. Next, critics said that Dicey’s condemnation of administrative discretion and his support for granting to the “ordinary courts” a key position in the resolution of disputes between individual and the administrative state could only hinder the implementation of legislative arrangements for regulation and redistribution in the public interest. The litigation procedure may have to condense complex and intricate policy decisions to just “question of law” or an issue of procedural “fairness”, whereas an agency or tribunal that obtains specialized expertise and field experience, and access to a wide array of methods of investigation and decision-making, may be in a better position to resolve multi-layered and multidimensional inquiries of policy. Third, it was contended that the positivist legal tradition (Dicey was a part of) did not appreciate or understand that law is interlaced with policy. Legislatures cannot predict all outcomes, and, by inference, statutes usually have to be drafted in general terms. Consequently, it may not be possible to arrive at the envisioned meaning of the language in an agency’s enabling legislation without taking into consideration the ramifications that competing interpretations will have for the program that the legislation was devised to deliver. The Rule of Law, Democratic Values and Fundamental Rights Clearly, the functionalist analysis has offered a critical corrective to the perspective of the rule of law proposed by Dicey However, the functionalist approach fails to fully consider democratic accountability and fundamental rights and the positive contributions and influence that the courts can have to accomplish these goal The courts actually appear to enjoy more public confidence than most other institutions of government There is potential to revise some aspects of the liberal version of the rule of law so as to offer a role and function for the law of judicial review in advancing these values in the modern administrative state. First, it is suitable for administrative law, both via statutory reform and judicial review, to make certain and guarantee procedural openness and improve accountability in public administration. Public participation and contribution out to be encouraged and not confined to individuals whose private rights may be negatively impacted by administrative action. Second, while courts should typically demonstrate a degree of deference to a specialist agency’s interpretation of its enabling statute, it is fitting to inspect and critic more closely those decisions that appear conflicting to the interests of the proposed beneficiaries of the legislation or to that feature of the public interest that the legislation was enacted to protect. In this manner, the courts can offer a counterbalance to the pressure that private economic interests often bring to force public agencies to circumvent their regulatory accountabilities. Third, the thrust and intention of the functionalist claim is recognized: it is typically pointless to envisage or conceive that the legislature had a “meaning” in mind when it enacted a provision in a statute that has to be applied to a set of facts at the time of enactment was probably not anticipated. Nonetheless, the individuality and freedom of the judiciary and its experience across a wide and diverse range of the legal system implicates it is suitable for the courts to interfere when they are pleased that the agency’s interpretation was unreasonable or outright wrong.  Fourth, the rights rooted in the Charter have been identified by Parliament that enacted it, and the provincial Legislatures that sanctioned it, as deserving of special fortification. Due to the fact that the Charter is applicable to governments and legislatures, agencies granted the task of implementing a public program should be aware of the possibility that administrative action may breach a Charter right. Violations of Charter rights must be balanced against other competing public interests; this is a task in which administrative agencies will usually be able to make an informed contribution.