cml 2312: administrative law forcese cml 2312: administrative law (forcese)

CML 2312: ADMINISTRATIVE LAW

Forcese

CML 2312: Administrative Law (Forcese)

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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


• in modern time, general, all-purpose remedy for any ground of JR

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What relief can be granted?: Prohibition


• prevents decisions not yet made

• available to prevent wrongful assumption of jurisdiction


• timing: available only where decision not yet made

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What relief can be granted?: Mandamus


• compels delegate to perform public duties


•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

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What relief can be granted?: Habeas corpus


• compels release of improperly detained person


• 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

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What relief can be granted?: Quo Warranto


• person challenged successfully does not have powers of the public office


• allows applicant to challenge person’s entitlement to public office

• must be purported exercise of allegedly usurped office

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What relief can be granted?: Declaration


• not binding, but generally observed


• court interprets provisions and declares true meaning

• only on questions of law

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What relief can be granted?: Injunction


• effect varies according to type


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

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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)


1. Failure to exhaust administrative remedies

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• Courts concerned about fragmentation

• Usually only intervene preemptively in extraordinary circumstances

• See, e.g., considerations weighed in Lorenz (FCA)


2. Prematurity

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3. Mootness4. Minor error5. No practical effect6. Timeliness of judicial review7. Applicant is bad

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Footnote discussion: Other remedies for abuses of power


• 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


Tort for abuse/misfeasance of power

REVIEWThe Public Law Setting

Power Diagram Key Events


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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


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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?


Power Diagram


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Flowchart: Procedural Review



Federal Ontario

CommonLaw

Bill of Rights Charter SPPA Common

Law



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Federal Ontario

CommonLaw


Law

Triggers

Leg. Exp.3-prong

:

Exceptions: Leg. decisions




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Federal Ontario

CommonLaw


Law

Content:

NemoAudi

:

Right to be heard Right to unbiased delegate




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Federal Ontario

CommonLaw


Law

Trigger

Section 7: deprivation oflife, liberty or security

of the person




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Federal Ontario

CommonLaw


Law

Content

At minimum, fundamentaljustice means common law

procedural guarantees




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Federal Ontario

CommonLaw


Law

Triggers

1(a): deprivation of life,liberty, security of the person

or enjoyment of property

:

2(e): determination ofrights and obligations




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Federal Ontario

CommonLaw


Law

Content

1(a): “due process”

:

2(e): fair hearing in accordance with principles of

fundamental justice



Power Diagram





Federal Ontario

CommonLaw


Law

Trigger

all tribunals exercising statutory powers of decision

required to hold a hearing


Power Diagram



Flowchart: Review Process

Control?

Appeal

Right of appeal mustexist in statute. Statute

will set out grounds,remedies, etc.


Power Diagram




Control?

Appeal

No appeal

Judicial ReviewAppeal to adminbody exhausted/no adequate alternativeappeal


Power Diagram




Control?

Judicial Review

Federal Ontario

JRPA


Power Diagram




Control?

Judicial Review

Federal Ontario

FCA


Power Diagram




Control?

Judicial Review

Federal(see FCA)

Ontario

Grounds

Errors where no deference(procedural entitlements) Errors where deference


Power Diagram




Errors where no deference(procedural entitlements)

Errors where deference

Errors of law

Grounds

Error of factAbuse of discretion


Power Diagram




Errors where no deference(procedural entitlements)

Errors where deference

Errors of law

Grounds

Error of factAbuse of discretion

Standard of Review Analysis


Power Diagram




Control?

Judicial Review

Federal Ontario

Common Law

Prerogative Writs Ordinary remedies


Power Diagram




Control?

Judicial Review

Federal Ontario

FCA, s.18 gives powerover most common law remedies;However, FCC practice generally

to cite s.18.1(3)

cml 2312: administrative law forcese cml 2312: administrative law (forcese)

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administrative law forcese

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