cml 2312: administrative law forcese cml 2312: administrative law (forcese)
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CML 2312: ADMINISTRATIVE LAW
Forcese
CML 2312: Administrative Law (Forcese)
CON
TROL O
F THE EXERCISE O
F DELEG
ATED
POW
ERReview
Control of Power: 4 Question Approach
What relief can be granted?: Certiorari
Scope of Remedy Effect of Remedy
• quashing of decision• issue of remitting for re-
determination
CML 2312: Administrative Law (Forcese)
• in modern time, general, all-purpose remedy for any ground of JR
CON
TROL O
F THE EXERCISE O
F DELEG
ATED
POW
ERReview
Control of Power: 4 Question Approach
What relief can be granted?: Prohibition
Scope of Remedy Effect of Remedy
• prevents decisions not yet made
• available to prevent wrongful assumption of jurisdiction
CML 2312: Administrative Law (Forcese)
• timing: available only where decision not yet made
CON
TROL O
F THE EXERCISE O
F DELEG
ATED
POW
ERReview
Control of Power: 4 Question Approach
What relief can be granted?: Mandamus
Scope of Remedy Effect of Remedy
• compels delegate to perform public duties
CML 2312: Administrative Law (Forcese)
•four basic requirements:1. the function to be performed
by the delegate obligatory2. the applicant for the relief is
owed the duty individually3. the performance of the duty is
due 4. the delegate has refused a
demand that it perform the duty
CON
TROL O
F THE EXERCISE O
F DELEG
ATED
POW
ERReview
Control of Power: 4 Question Approach
What relief can be granted?: Habeas corpus
Scope of Remedy Effect of Remedy
• compels release of improperly detained person
CML 2312: Administrative Law (Forcese)
• brought on behalf of detained person
• in Ontario, Habeas Corpus Act (for civil matters)
• provides for a prayer for certiorari in aid of habeas corpus
CON
TROL O
F THE EXERCISE O
F DELEG
ATED
POW
ERReview
Control of Power: 4 Question Approach
What relief can be granted?: Quo Warranto
Scope of Remedy Effect of Remedy
• person challenged successfully does not have powers of the public office
CML 2312: Administrative Law (Forcese)
• allows applicant to challenge person’s entitlement to public office
• must be purported exercise of allegedly usurped office
CON
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F THE EXERCISE O
F DELEG
ATED
POW
ERReview
Control of Power: 4 Question Approach
What relief can be granted?: Declaration
Scope of Remedy Effect of Remedy
• not binding, but generally observed
CML 2312: Administrative Law (Forcese)
• court interprets provisions and declares true meaning
• only on questions of law
CON
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F THE EXERCISE O
F DELEG
ATED
POW
ERReview
Control of Power: 4 Question Approach
What relief can be granted?: Injunction
Scope of Remedy Effect of Remedy
• effect varies according to type
CML 2312: Administrative Law (Forcese)
1. Classified by effect:• preventive injunctions• mandatory injunctions
2. Classified by duration• interlocutory injunctions
• 3 prong test in RJR:1. Serious question2. Irreparable harm3. Balance of Convenience
• permanent injunctions
CON
TROL O
F THE EXERCISE O
F DELEG
ATED
POW
ERReview
Control of Power: 4 Question Approach
What relief can be granted?: Discretion to decline remedies
Issue Considerations
• remedy may be declined where administrative remedy is “adequate”
• Issue of adequacy: may be measured with an eye to, e.g., “the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body” (Matsqui, SCC)
CML 2312: Administrative Law (Forcese)
1. Failure to exhaust administrative remedies
CON
TROL O
F THE EXERCISE O
F DELEG
ATED
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ERReview
Control of Power: 4 Question Approach
What relief can be granted?: Discretion to decline remedies
Issue Considerations
• Courts concerned about fragmentation
• Usually only intervene preemptively in extraordinary circumstances
• See, e.g., considerations weighed in Lorenz (FCA)
CML 2312: Administrative Law (Forcese)
2. Prematurity
CON
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F THE EXERCISE O
F DELEG
ATED
POW
ERReview
Control of Power: 4 Question Approach
What relief can be granted?: Discretion to decline remedies
Issue Considerations
CML 2312: Administrative Law (Forcese)
3. Mootness4. Minor error5. No practical effect6. Timeliness of judicial review7. Applicant is bad
CON
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F THE EXERCISE O
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ERReview
Footnote discussion: Other remedies for abuses of power
Issue Considerations
• Black v. Canada• Odhavji Estate v. Woodhouse
misfeasance in public office (this abuse of power), is an intentional tort distinguished by (1) deliberate, unlawful conduct in the exercise of public functions; and (2) awareness that the conduct is unlawful and likely to injure the plaintiff
CML 2312: Administrative Law (Forcese)
Tort for abuse/misfeasance of power
REVIEWThe Public Law Setting
Power Diagram Key Events
CML 2312: Administrative Law (Forcese)
.
Subdividing the Executive’s Slice of the Power Diagram:
• The answer to “show me the power” must be one of three different sorts of power
• Otherwise, the official is acting “outside of their jurisdiction”, or ultra vires.
Accountability and the Administrative Law “Mantra”: Show me the Power!
Power Diagram
Constitution Act, 1867
Royal Prerogative
The Most Important: Power delagated by statute
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram The Steps
CML 2312: Administrative Law (Forcese)
.
3. How is the power to be exercised?• Two sub-questions:
1. What is the procedure to be followed in the exercise of power?• Sources of these
procedures:• Statute• Common law• Constitution
The 3 Question Approach to the Exercise of Delegated Power
1. To whom is the power delegated?2. What is the nature of the power delegated?3. How is the power to be exercised?
Power Diagram
The 4 Question Approach to the Control of the Exercise of Delegated Power
1. Who exercises the control?2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised?4. What relief can be granted?
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
CML 2312: Administrative Law (Forcese)
.
Flowchart: Procedural Review
The 4 Question Approach to the Control of the Exercise of Delegated Power
1. Who exercises the control?2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised?4. What relief can be granted?
Federal Ontario
CommonLaw
Bill of Rights Charter SPPA Common
Law
REVIEWThe Seven Steps to Administrative Law Wisdom
CML 2312: Administrative Law (Forcese)
.
The 4 Question Approach to the Control of the Exercise of Delegated Power
1. Who exercises the control?2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised?4. What relief can be granted?
Federal Ontario
CommonLaw
Bill of Rights Charter SPPA Common
Law
Triggers
Leg. Exp.3-prong
:
Exceptions: Leg. decisions
Flowchart: Procedural Review
REVIEWThe Seven Steps to Administrative Law Wisdom
CML 2312: Administrative Law (Forcese)
.
The 4 Question Approach to the Control of the Exercise of Delegated Power
1. Who exercises the control?2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised?4. What relief can be granted?
Federal Ontario
CommonLaw
Bill of Rights Charter SPPA Common
Law
Content:
NemoAudi
:
Right to be heard Right to unbiased delegate
Flowchart: Procedural Review
REVIEWThe Seven Steps to Administrative Law Wisdom
CML 2312: Administrative Law (Forcese)
.
The 4 Question Approach to the Control of the Exercise of Delegated Power
1. Who exercises the control?2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised?4. What relief can be granted?
Federal Ontario
CommonLaw
Bill of Rights Charter SPPA Common
Law
Trigger
Section 7: deprivation oflife, liberty or security
of the person
Flowchart: Procedural Review
REVIEWThe Seven Steps to Administrative Law Wisdom
CML 2312: Administrative Law (Forcese)
.
The 4 Question Approach to the Control of the Exercise of Delegated Power
1. Who exercises the control?2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised?4. What relief can be granted?
Federal Ontario
CommonLaw
Bill of Rights Charter SPPA Common
Law
Content
At minimum, fundamentaljustice means common law
procedural guarantees
Flowchart: Procedural Review
REVIEWThe Seven Steps to Administrative Law Wisdom
CML 2312: Administrative Law (Forcese)
.
The 4 Question Approach to the Control of the Exercise of Delegated Power
1. Who exercises the control?2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised?4. What relief can be granted?
Federal Ontario
CommonLaw
Bill of Rights Charter SPPA Common
Law
Triggers
1(a): deprivation of life,liberty, security of the person
or enjoyment of property
:
2(e): determination ofrights and obligations
Flowchart: Procedural Review
REVIEWThe Seven Steps to Administrative Law Wisdom
CML 2312: Administrative Law (Forcese)
.
The 4 Question Approach to the Control of the Exercise of Delegated Power
1. Who exercises the control?2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised?4. What relief can be granted?
Federal Ontario
CommonLaw
Bill of Rights Charter SPPA Common
Law
Content
1(a): “due process”
:
2(e): fair hearing in accordance with principles of
fundamental justice
Flowchart: Procedural Review
REVIEWThe Seven Steps to Administrative Law Wisdom
CML 2312: Administrative Law (Forcese)
.
The 4 Question Approach to the Control of the Exercise of Delegated Power
1. Who exercises the control?2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised?4. What relief can be granted?
Federal Ontario
CommonLaw
Bill of Rights Charter SPPA Common
Law
Content
1(a): “due process”
:
2(e): fair hearing in accordance with principles of
fundamental justice
Flowchart: Procedural Review
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
CML 2312: Administrative Law (Forcese)
Flowchart: Procedural Review
The 4 Question Approach to the Control of the Exercise of Delegated Power
1. Who exercises the control?2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised?4. What relief can be granted?
Federal Ontario
CommonLaw
Bill of Rights Charter SPPA Common
Law
Trigger
all tribunals exercising statutory powers of decision
required to hold a hearing
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
The 3 Question Approach to the Exercise of Delegated Power
1. To whom is the power delegated?2. What is the nature of the power delegated?3. How is the power to be exercised?
Flowchart: Review Process
Control?
Appeal
Right of appeal mustexist in statute. Statute
will set out grounds,remedies, etc.
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
The 3 Question Approach to the Exercise of Delegated Power
1. To whom is the power delegated?2. What is the nature of the power delegated?3. How is the power to be exercised?
Flowchart: Review Process
Control?
Appeal
No appeal
Judicial ReviewAppeal to adminbody exhausted/no adequate alternativeappeal
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
The 3 Question Approach to the Exercise of Delegated Power
1. To whom is the power delegated?2. What is the nature of the power delegated?3. How is the power to be exercised?
Flowchart: Review Process
Control?
Judicial Review
Federal Ontario
JRPA
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
The 3 Question Approach to the Exercise of Delegated Power
1. To whom is the power delegated?2. What is the nature of the power delegated?3. How is the power to be exercised?
Flowchart: Review Process
Control?
Judicial Review
Federal Ontario
FCA
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
The 3 Question Approach to the Exercise of Delegated Power
1. To whom is the power delegated?2. What is the nature of the power delegated?3. How is the power to be exercised?
Flowchart: Review Process
Control?
Judicial Review
Federal(see FCA)
Ontario
Grounds
Errors where no deference(procedural entitlements) Errors where deference
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
The 3 Question Approach to the Exercise of Delegated Power
1. To whom is the power delegated?2. What is the nature of the power delegated?3. How is the power to be exercised?
Flowchart: Review Process
Errors where no deference(procedural entitlements)
Errors where deference
Errors of law
Grounds
Error of factAbuse of discretion
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
The 3 Question Approach to the Exercise of Delegated Power
1. To whom is the power delegated?2. What is the nature of the power delegated?3. How is the power to be exercised?
Flowchart: Review Process
Errors where no deference(procedural entitlements)
Errors where deference
Errors of law
Grounds
Error of factAbuse of discretion
Standard of Review Analysis
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
The 3 Question Approach to the Exercise of Delegated Power
1. To whom is the power delegated?2. What is the nature of the power delegated?3. How is the power to be exercised?
Flowchart: Review Process
Control?
Judicial Review
Federal Ontario
Common Law
Prerogative Writs Ordinary remedies
REVIEWThe Seven Steps to Administrative Law Wisdom
Power Diagram
The 3 Question Approach to the Exercise of Delegated Power
1. To whom is the power delegated?2. What is the nature of the power delegated?3. How is the power to be exercised?
Flowchart: Review Process
Control?
Judicial Review
Federal Ontario
FCA, s.18 gives powerover most common law remedies;However, FCC practice generally
to cite s.18.1(3)
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