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Guide To Judicial Review of Admin Decisions

PF

1.--> Does Legislation Provide any procedural rights?

2. Then, CL PF Threshold factors CONSIDER: is the decision legislative and general ? Yes: not likely to cross. affect rights, interests,property, privileges, liberties ? Yes: more likely to

cross. serious consequences ? Yes: more likely to cross prelimary vs final decision ? Final: more likely. Preliminary: not likely relationship btw individual and ADM ? Office at pleasure-type: more likely

(eg. no contract of employment or terms provide for summary/dismissal/noprotection)

3. Even if threshold not met -> were there any Legitimate Expectations?

(can only create procedual rights (not substantive) (ie order a hearing)

4. Then, Constitutional Threshold:(Charter for provl/fedl ADM -OR- Bill of Rights for fedl ADM)

Charter: s7 (life liberty security affected by decision): PF requirement =-->procedures must accord w/ fundamental justice-->failure to do so must be justified under s1

Bill of R: s1(a) (life, liberty, security, or enjoyment of property affected bydecision): PF requirement =

-->due process of lawORs2(e) (decision determines rights and obligations): PF requirement =-->entitled to a hearing in accordance with fundamental justice

5. Decision has Crossed CL/Consti Threshold,

Determine Content of PF in the circumstances (Baker Factors): nature of the decision and process followed making it – closer to judicial

process: more PF role of decision in stat scheme – internal appeals avail: less PF

importance of decision to the individual – more importance: more PF legitimate expectations – did ADM make representations as to

procedure/outcome? choices of procedure made by agency – should be respected: less PF

**write these out**:since the ___ threshold is crossed, [X] must have an opportunity to know theissues and to make representations;the deliberative process followed by the ADM must meet the duty of fairness or be

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in keeping with prinicples of fundamental justice; andthe decision must be made by an unbiased, independent decision maker

but what that entails depends on the particular circumstances of the case (Knight )

6. Requirement for particular procdures : based on whether actually necessary to

allow affected party to make representations-->If sufficient participation ensured in some other way : cant assert Proceduresought -no failure to meet PF duty

If sufficent participation not afforded,Assesss what procedures may be relevant to the PF duty :-Notice-discovery/disclosure-delay-oral hearing

-right to counsel-crossX-official notice-Those who hear must decide-reasons / content of reasons-impartiality / independence

7. Should the court rigorously review the decision?: Standard of Review

Usually correctness review applies where duty of PF has been breached.Exceptions: choices and expertise of ADM re procedural matters calls for more

deference(Re Paine and UofT)

+s7 breach may be justified under s1

8. Finding of Breach of CL PF or s7 (not justified under s1) --> decision quashed

some cases say this should only be done if outcome would have been differentw/o the breach (Hundal v Spt Motor Vehicles)more cases say it is more important that ADM functions correctly: and denial of PFmust always result in invalidity of the decision (Cardinal v Dir of Kent)