Administrative Law - Fall 2024 PBLA 1001 PDF

Administrative Law FALL 2024 What is Administrative Law Administrative Law  Part of domestic public law  Provides legal limitations for governmental officials  Provides remedies available to those dealing with transgressors  Government has limits on what it can do (remember the Rule o...

Administrative Law FALL 2024 What is Administrative Law Administrative Law  Part of domestic public law  Provides legal limitations for governmental officials  Provides remedies available to those dealing with transgressors  Government has limits on what it can do (remember the Rule of Law) - administrative law is the rules for the rule makers  Subject of administrative law invariably involves questions of lawful authority of an official to do a particular act, which might be illegal and give rise to actionable wrong Duty to be Fair, Procedural Fairness, Natural Justice  Duty to be fair – Duty of fairness + duty to be fair + procedural fairness = all synonyms  Natural Justice – Historical context that depended on characterization of delegates function – more details later – Two central tenets:  Audi Alteram Partem: (hear both sides) – person must know case being made against her and have opportunity to respond to it  Nemo Judex In Sua Causa Debet Esse: (rule against bias) – Impartial decision maker – only base decision on relevant evidence properly before TRIBUNAL  Rules of National Justice cover all aspects of notice, discussion, case against, opportunity to answer etc. Administrative Agencies  Government bodies created under various federal, provincial and territorial statutes with the purpose of administering specific statutory regimes  Statute that creates the agency is the governing/enabling legislation  Agency is limited to the authority afforded it in the enabling legislation  Agencies cannot exceed or act outside of the authority provided in the governing legislation, for example landlord tenant board cannot decide human rights issues Constitutional Basis for Agencies  Constitution Act, 1867 division of powers under Sections 91 and 92  Section 91 gives the Federal government jurisdiction to create agencies dealing with federal/national issues and territorial issues  Section 92 gives the Provincial government jurisdiction to create agencies dealing with provincial/local issues 3 branches of government  Legislative and judicial branches have remained largely the same  Structure of executive branch has changed considerably. Cabinet still key decision making body in federal government.  Departments presided over by ministers have decision making authority over difficult portfolios. Still core of the executive branch AND staff of these departments continue to exercise powers and make decisions that are subject to Administrative Law  HOWEVER many of the former functions of departments are now carried out by a complex network of administrative agencies, boards & commissions (“A,B,Cs”)  A,B,Cs are at arm’s length from minister to whom they report and from department staff  So many of these freestanding agencies that they are now loosely referred to be some as the 4th branch of government. Traditional role and structure of Executive Branch (EB)  2 cornerstones: – Accountability of minister to public as a member of legislature – Insulation of civil services from political influence  EB maintained separation of powers between branches of government  EB consisted of a centralized department or ministries, each headed by a cabinet minister who was a member of Federal party or provincial legislature  Minister was responsible to the legislature for making policy and implementing it  System was called “responsible government” because minister was responsible to EB (Prime Minister/Premier and Cabinet) AND because ministers were responsible for work of department to the elected legislature and Canadian public Civil servants  Civil servants carrying out work of departments were different from minister who headed department and were largely insulated from political pressure through various mechanisms: – Reported to another civil servant (deputy minister of department appointed by the Prime Minister/Premier) NOT the minister who headed the department – Independent commissions established and carried out rules for hiring and firing civil servants (not done by politicians) – Legislation governed the hiring, remuneration, promotion and dismissal practices of civil service and its operation  System promoted hiring based on ability, and expertise not political connections  Security of tenure of civil servants enabled them to “speak truth to power” Agencies  Development of administrative agencies – In response to changes in society and increased diversity in demands on government – Simple structure of traditional structure became more complex  Special purpose agencies – Established outside of traditional structure of EBs to allow government to carry out civil services functions with greater flexibility, efficiency and expertise – Big world events, ie. WWI, Great Depression, WWII, all stimulated Federal and Provincial governments to become more involved in regulating economy & influencing social & culture issues First administrative agencies in Canada  Canada 1851 – Board of Railway Commissioners set up under Railway Act – Primarily to approve rail rates  BC 1921 – BC’s first admin agency = Workman’s Compensation Board  Canadian society increased population & diversity, increased in complexity, economically, culturally & technologically AND so did government structures created to meet their needs and address their problems – RESULT = proliferation of special purpose agencies 10 categories of Ontario’s agencies 1) Advisory Agencies: advise ministry and assist in development of policy on delivery of programs – do not make decisions or carry out programs  2) Operational Service Agencies: deliver goods/services to public, offer at lower or no fee  3) Operational Enterprises: sells goods/services to public in commercial setting – may compete with private sector/have monopoly  4) Regulatory Agencies: make independent decisions that limit/promote conduct, practice, obligations, rights & responses of individuals, businesses/corporations Categories of Ontario’s agencies cont.  5) Adjudicative Agencies also known as “Tribunals”: make independent decisions, similar to courts, which resolve disputes over rights, obligations, responses of individuals/ businesses/ corporations/ governments/decision makers. Also hear appeals from government decisions  6) Crown Foundations: solicit, manage, distribute donations of money/other assets to support public organizations  7) Trust Agencies: administer funds and other assets for beneficiaries named under statute Categories of Ontario’s agencies cont.  8) Non-Scheduled Agencies  9) Watchdog Bodies: ombudsman and like bodies to monitor whether government departments and agencies are carrying out duties fairly, effectively and efficiently and to address individual complaints of unfair treatment  10) Royal Commissions/Other for Public Inquiries: carry out public inquiries – investigate and make findings and recommendations about a specific problem – dissolved after findings are reported Why Governments Create Administrative Bodies  1) Demonstrate independence: decisions are then not seen as political  2) Decrease size, workload, budget of dept: may establish outside agency – save space, achieve increased efficiency  3) Decrease conflicts of interest: hiving off some of the department’s functions to independent bodies  4) Provide flexibility in human resources: avoid some of hiring practices, employment standards, salary and benefits rules, tenure requirements, reporting requirements that must be followed when employing civil servants  5) Provide expertise and experience and specialization: expertise in specific subject matter not readily available when employing civil servants Administrative Bodies cont.  6) Ensure representation: involve members of general public, particular interest groups  7) Avoid permanence: deal with current problem then dissolve – do not make permanent change to ministry department – restructure if need  8) Decreased labour costs: often considered honour so can get highly skilled, experienced people for less money than they would get in market place  9) Signal a new/different approach: new/different approach desired – novel issue or past practice or approach needs to be changed  10) Achieve coordination and uniformity: advisory agency to help co-ordinate different departments carrying out similar or related functions so increase consistency of approach, increase effectiveness and efficiency, increases pooling of resources Why governments delegate to Administrative Agencies  REVIEW  i) mechanism to review decision of government decision-maker – right to appeal decision to Tribunal ensures that decision can be judged fairly and objectively  RESOLVE  ii) resolve issues between 2 or more individuals or companies - not just decide an issue strictly between government and individual  CONSEQUENCES  iii) decision has serious consequences for a person and society – informal decision-making process for decisions that may affect person’s rights, duties, obligations, livelihood or public’s health or safety is inappropriate  Increased stakes = increased likelihood that agency making decision will be Tribunal or increased likelihood that there will be an appeal to the Tribunal if initial decision is made by a department or agency that is not a Tribunal Why governments delegate cont’d  IMPARTIAL  iv) to demonstrate impartiality of a decision-making process and avoid perception that decision-maker is biased  particularly important where decisions of a government official or minister are being reviewed – appeal to someone within same dept or may not appear impartial  FAIRNESS  v) to ensure fairness of procedures and outcome through use of procedural similar to courts  MESSAGE  vi) send message to community that issue is important to government  DISTANCE  vii) to distance government from potentially unpopular or controversial decisions  PARTICIPATION  viii) to allow for citizen participation in decision-making process  EXPERTS  ix) to involve experts in decision  DECREASE COST/INCREASE EFFICIENCY  x) to handle cases more efficiently and cost-effectively Advantages of Tribunals over Courts  Why not delegate decision-making functions to courts?  PEERS  i) may be desirable to have decision made by person’s peers or experts, not judges, civil servants or police – panel with community membership may be different sensitivity, experience  EXPERTISE  ii) members of specialized Tribunal can develop expertise in administering particular set of laws, which can ensure that the area of law is interpreted consistently and interpretation reflects certain social values, professional standards and government policies  Judges in certain areas, i.e. OCJ family law, construction lien court, are experts in that area  INTEREST GROUPS  iii) Tribunals can include representatives of interest groups affected by Tribunals’ mandate or individuals with professional backgrounds relevant to subject matter covered by Tribunals – Tribunals that include representative from each opposing group as well as neutral members may ensure interests of both groups and general community are represented Advantages of Tribunals over Courts cont’d  STRUCTURE ADVANTAGES  iv) common law and governing statute often grant Tribunal freedom to be more informal than courts – less formal – more accessible – greater flexibility – may be able to ensure fairness with fewer procedural safeguards – not as intimidating – more comfortable for the public – do not need lawyer  SPEED  v) hear cases quickly and without delay – rules and practices can be tailored to meet specific needs or parties and avoid unnecessary red tape – still have lots of cases where it takes far too long for the matter to be heard – 2019 HRT article – took complainant 6 years to get her decision, which confirmed that employers cannot discriminate based on age even though ES and HRA allow it Similarities between Tribunals and Courts Tribunals cannot do whatever they want under guise of informality  LIMITS TO INFORMALITY OF TRIB STRUCTURE AND PROCESS – Limits imposed by:  Common law doctrine of procedural fairness  Statutes that create the Tribunal  Statutes such as Ontario’s SPPA, which sets out minimum rules for procedure for some Tribunals in Ontario  TRIBUNALS must follow fair process – Affected persons must have right to be heard by impartial decision-maker – MEANS? – apply rules governing:  Notice  Disclosure  Presentation of evidence  Questioning of witnesses  Adjournments  Submissions  Representation by counsel or other agents More similarities …. All parties are given reasonable notice of proceedings before hearing begins All parties have opportunity to present case All parties are informed of case to meet All parties to present evidence and cross-examine witnesses or test accuracy of evidence against them All parties have right to be represented by lawyer or agent Avoid any statements or actions suggesting the Tribunal has prejudged issues or harbours bias for/against any party Apply law that governs proceedings and takes into account considerations relevant under the law All parties have chance to make final submissions All parties have right to receive decisions that are reasonably clear SUBSTANTIVE AND STYLE DIFFERENCES BETWEEN COURTS AND TRIBUNALS 1) Substantive differences: - Requirement to follow previous decisions - Acceptable evidence - Disclosure - Roles of staff and parties - Requirement to follow adversarial process 2) Style differences: - Identification of decision-makers - Seating - Ceremonial trappings - Swearing oath or affirmation Similarities And Differences Between Tribunal Members And Judges  SIMILARITIES with respect to responsibilities, requirements of impartiality, scope of decision-making powers  IMPARTIAL  i) both must render impartial decisions – Tribunal members cannot be influenced by political pressure or connection to any party before the Tribunal BUT some safeguards afforded judges are not given to Tribunal members, i.e. they do not have security of tenure – government can terminate their appointments at any time  INTERESTS AND ASSOCIATIONS INVOLVEMENT  ii) both are expected to avoid interests and associations that might suggest their decisions are not impartial  BUT many tribunal members are part-time and may be involved in businesses, professional, volunteer and social activities, that might be unacceptable for judges, causing concern about impartiality Similarities and Differences cont’d  APPLY LAW  iii) both are required to apply and interpret law, not substitute their own view of what the law should be for the decisions of legislators  BUT tribunal members may have considerable discretion in applying the law or may be expected to apply, interpret, follow government policies  EVIDENCE AND EXPERTISE  iv) both must decide cases based on evidence before them  BUT tribunal members with specialized knowledge and expertise may have some latitude in applying heir knowledge or understanding of professional standards and norms in making decisions  NOTE: Judges often take judicial notice of facts not in dispute, which means that the parties do not have to prove those facts, i.e. LSUC changed to LSO Agencies, Boards & Commissions (A,B,Cs)  Challenged traditional methods of balancing accountability and independence in the civil service, and threatened to undermine separation of powers.  Heads and members appointed by ministers not the legislative assembly therefore not accountable to legislature the way ministers are  Often not civil servants so not subject to same methods of accountability or mechanisms to avoid political pressure that civil servants were, for example the civil service staffing rules  Decrease patronage in selection process  Problematic that unqualified individuals were appointed to reward people for their contribution to party in power - they often lacked expertise and permanence that contributed to independence of civil service  Some new agencies carried out traditional functions of EB (implementing laws, developing administrative policies and practices) AND performed legislative and judicial functions Multipurpose Agencies  Have several functions  Have to separate their functions and follow different rules when carrying them out in order to ensure fairness  Authorized by statute to regulate practice of law in each province – lawyers and paralegals in Ontario must be members of their provincial law society and comply with the standards it sets.  Laws regulating legal profession require law societies to: – Provide professional education – Set standards for professional conduct – Randomly audit lawyers – Investigate complaints of misconduct/incompetence – Determine validity of complaints & take appropriate disciplinary acc or ace to improve competence Examples of multipurpose role  Allegation of professional misconduct: LSO is investigator, prosecutor, adjudicator  Audit/investigation turns up evidence of misconduct (all done by LSO)  Investigateallegations and prepare case against lawyer  Present case to panel of members  Panel decides if allegations of misconduct are justified  If yes, disorder or discipline Procedural fairness measures  Legislative function: – setting standards of conduct for lawyers – no requirement to give all LSO members notice of the process or to allow them to make submissions regarding it – may be requirement to show members all of information & studies governing body relied on in formulating the standards  If being investigated: – Maybe no requirement to notify member of the investigation or give member an opportunity to review evidence/tell story – WHY? Because investigation can only result in recommendation regarding whether to take further action – not in a binding decision that will prevent lawyers from practicing  Launch disciplinary proceeding: – Must give member notice of change, opportunity to respond, opportunity to review evidence 2 key requirements 1) Separation of functions of fairness: key to ensuring fairness when agency has multiple functions – structure must ensure the functions are separated from each other ESPECIALLY WHEN AGENCY IS INVESTIGATOR, PROSECUTOR, ADJUDICATOR – How to ensure separation?  Make sure investigator(s), prosecutor(s) and adjudicator(s) are different people  Isolate activities of investigator, prosecutor and decision maker to prevent each of them from unduly influencing the others or usurping their functions  Investigator, prosecutor, adjudicator get legal advice from different sources – Failure to ensure separation may invalidate process  Justice must not only be done, it must be seen to be done – WHAT DOES THAT MEAN?  Fairness = unbiased, no preconception before making decisions  Jury = sequestered, kept off internet etc. REMEMBER 2 key principles – Nemo judex in sua causa debet esse or in propia causa: no one shall be a Judge in his own case or be decision maker because no one responsible for proving case can reasonably be expected to be impartial about its outcome – Audi alteram partem: right to know case against you and be given opportunity to respond No delegation of authority when multiple functions 2) Adjudicator cannot delegate decision-making authority – If decision making isn’t sufficiently independent of the prosecutor, risk that he will inadvertently defer to wishes of prosecutor when making decision. – Prosecution must also be independent of investigation so they can objectively & independently assess accuracy and comprehensiveness of evidence and make an informed recommendation/decision where evidence is sufficient to warrant laying charges. – Prosecution shouldn’t support evidence that is suspect. How to do this?  Create internal structures and barriers to moderate or minimize impact of problems caused by conflicting functions i.e. Saskatchewan HR Commission – Investigates and decides on HR complaints – STAGES: investigates the HR complaints and makes findings re: valid/not – INTAKE – “Gate keeping Role”: determining whether potential complainant is within its jurisdiction and whether complainant has reasonable goals for believing the HRC has been violated – INVESTIGATE: during this stage, Commission plays neutral, objective role, including providing mediation – AFTER INVESTIGATION:  complainant with merit/ should be dealt with in different forum = DISMISSES  sufficient evidence of disc = REFERS CASE TO SEPARATE TRIBUNAL [Sask HRT] – AT HEARING: Commission becomes advocate presenting case FOR complainant  Sask HRT makes finding  Separation of functions ensures that at least 2/3 different bodies must review case  Guards against possible threat that known acquired biases induced by one stage of proceedings won’t improperly influence a later stage of proceedings Administrative Tribunals in ABC Scheme  Administrative Justice Tribunals = AKA Administrative Tribunals = AKA Tribunals = AKA Board of Directors/Commissions – Agencies required by statute/common law to follow procedures similar to courts in making decisions – Created by special statute to adjudicate disputes between individuals/companies/government over statute based rights, entitlements, duties  Tribunals – Generally use a more formal, court-like process than that followed by government staff when deciding whether to grant approvals or bestow benefits – Remember 2 principles: right to know case & response AND right to no bias Continuum of decision making process Behind Closed Doors  Court-Like (Informal procedures) (Similar to adversarial process, usually done in public)  Straight forward admin decisions Delegated to internal decision making department Person must act fairly i.e. must disclose criteria to make decision, provide opportunity to address how those criteria apply, give brief explanation of reasons for decision Informal process Quasi-Judicial Tribunal  Judicial in nature but exercised outside court room  When there’s dispute between person and government official who has made decision that adversely affects that person or where the dispute’s between 2/more parties [ESTABLISHED BY GOVERNMENT]  To ensure fairness – required to operate more formally  Provide greater safeguards for a fair process, i.e. an oral hearing and opportunity to examine witnesses  Government often ensures that Tribunal has arms-length relationship with administrative agency to which it reports which is a party to its hearing – Often this is established by setting up Tribunal under separate legislation and ensuring independent operation from agency, i.e. giving Tribunal its own staff (not staffing it with civil servants) providing that the Tribunal’s members may not be civil servants TRIBUNAL & STAFF CIVIL SERVANTS TRIBUNAL DECISIONS  Often uphold, grant/take away rights, benefits OR privileges therefore TRIBUNALS required to follow certain rules to ensure decision- making process is fair (rules discussed in Chapters 6 &7)  2 principles of Natural Justice Place Of Tribunal In Government Structure Part of Executive Branch but also perform functions similar to those of Judicial Branch (make final decisions about rights, money etc., have serious impact on people) Some refer to them as “hybrid” bodies – and raise concern about lack of accountability to public LEGITIMACY no longer questioned because Tribunals have become so integral to government system (REMEMBER: 4TH ARM/BRANCH) Independent Parties TOO INDEPENDENT - politicians and Civil Servants may feel that Tribunals are not sensitive enough to government policy and do not understand that the limited resources available make it difficult for official to carry out their functions in the way that Tribunals should VS NOT INDEPENDENT ENOUGH - parties appearing before Tribunals may fear that an agency whose members were appointed by Cabinet or legislature will not be sufficiently independent of politicians or bureaucrats to ensure that everyone received a fair and impartial hearing Source And Scope Or Agency Powers And Duties – Every administrative Tribunal and other ABCs are governed by their ENABLING LEGISLATION – the statute that creates the agency for a specific purpose – AND other legislation that set out Tribunal’s powers and duties (Ont. SPPA) – They are often supplemented by common law requirements for fair procedures (2 principles) where statute is silent on rights of parties – AND by an additional powers unreasonably necessary to carry out statutory powers – POWERS MAY INCLUDE – holding hearings, requiring witnesses to attend and give evidence, receiving evidence, deciding dispute Agencies cont.  AGENCY MAY HAVE MANDATE to perform related tasks, ie. investigating, regulating, prosecuting, advising, setting policy  REMEMBER: Agency is divided into separate bodies with different members and/or staff to perform different functions – TO ENSURE FAIRNESS AND IMPARTIALITY Adjudication  “court”: process of receiving and considering evidence and arguments presented by both sides in a dispute and making a binding decision by applying the relevant law to the issues in the case  In Tribunal system (when based on adversarial system) – adjudicator is often relatively passive – adjudicator weighs and evaluates evidence and arguments submitted to opposing parties – generally pay limited role in deciding what evidence will be sought out or brought before Tribunal – role is to watch, listen and judge – like a referee who makes sure the parties follow the “rules of the game” but is not permitted to favor one party over another – sometimes adjudicators have right to take a more active role in investigating and collecting evidence and information  Our court system is more adversarial but some judges can be very interventionist and dictate who they want to hear from, further evidence they need etc.  They do not marshal, gather or collect evidence or conduct investigation but do have a more involved role in the hearing = JUDGES ARE NOT PASSIVE  In ADR (med/arb) – facilitator/decision-maker interacts with parties quite differently – seek to help parties negotiate settlement without need Adversarial of adjudication vs. inquisitorial systems INQUISITORIAL ADVERSIAL  Parties determine Requires TRIBUNAL what to end conduct is brought investigation before and TRIBUNAL collect evidence  TRIBUNAL have Adjudicate can’t greater activelylatitude seek out to additional examine andevidence cross-examine parties and witnesses and  may call witness on own initiative Each party has opportunity to present case & challenge opposite side’s case  In Ontario, approach is driven by requirements of SPPA, which sets out rules of procedure for most TRIBUNAL  BASED ON 3 ASSUMPTIONS: – Parties are in best position to decide what evidence is useful – Both parties have adequate financial resources & access to info to participate effectively in process – There is no substitute power imbalance between parties Adversarial of adjudication vs. inquisitorial systems cont. INQUISITORIAL ADVERSIAL  One help Can of parties re-establish has burdenbalance of proof between “week citizens” IN DISPUTES between & “strong” government government officials (who have access (especially if adjudicator’s to sub expertise authorized and to resources) obtain information and in dals doesn’t (limited prevent experience parties fromandplaying resources) subs rolea purely in bringing adversarial forwardprocess evidencemay and notmaking be best way to bring out truth and ensure that in dals are able to articulate their goals and representations)  interests TRIBUNAL clearly may have burden of finding enough evidence to determine whether  Also –isoften party entitled thattoisremedy the first(Party time thecould party winiseven dialing if doesn’t with thatshow issueup.) involved in since process whereas government body does it all the time, has access to other people who know how to deal with it, precedent etc.