CML 2312: Administrative Law

CML 2312: ADMINISTRATIVE LAW

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CML 2312: Administrative Law (Forcese)

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Control of Power: 4 Question Approach

The Four Questions

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?


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Question 1: Who exercises control

Forms of Control

STOP!

A few comments on “administrative” or “statutory” appeals


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Forms of Control

Judicial review in Ontario: Judicial Review Procedures Act


2.--(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

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Forms of Control

•Aspects of s.2:• “despite any right of appeal”• Matsqui (1995), SCC: obligation

to seek "adequate alternative administrative remedies" before pursuing judicial review

• may be inadequate alternative remedy where: scope of appeal insufficient; appellate body lacks necessary power; the appeal is slow, expensive, cumbersome





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Forms of Control

•Aspects of s.2:• What is a “statutory power”


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Forms of Control

•Aspects of s.2:• What is a “statutory power”


s.1: "statutory power" means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(b) to exercise a statutory power of decision,

(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.

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Forms of Control

•Aspects of s.2:• What is a “statutory power”• What is a “statutory power of

decision”


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Forms of Control

•Aspects of s.2:• What is a “statutory power”• What is a “statutory power of

decision”


s.1: "statutory power of decision" means a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.

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Forms of Control





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Forms of Control

JRPA:• Parties and standing


• s-s.9(2) says that for the purposes of an application for judicial review in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power may be a party to the application

• as a general principle, for other person to have standing, the interests of that person must have been "prejudicially affected" by the decision

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Forms of Control

JRPA:• Parties and standing• Venue


• typically heard by Divisional Court• s.6(2): leave to be heard by Superior Court of Justice where the case is one of urgency and where the delay required for an application for Divisional Court is likely to involve a failure of justice

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Forms of Control

JRPA:• Parties and standing• Venue• Procedure


• Application for JR brought by way of originating notice of application

• Must set out grounds for relief and nature of the relief sought

• Procedure to be followed set out in Rule 68

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Forms of Control

JRPA:• Parties and standing• Venue• Procedure• Remedies


• makes minor changes to common law remedies

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Forms of Control

JRPA:• Parties and standing• Venue• Procedure• Remedies• Appeals


• to the Court of Appeal with leave, in accordance with Rule 61

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Question 1: Who exercises controlForms of Control


• decisions, orders or other administrative actions of a “federal board, commission or other tribunal”

• s.2 of the FCA:"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867”

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• ss.18, 18.1-18.5 and 28 of the FCA govern JR jurisdiction”

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• s.18.5:...where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision [of a delegate], that decision or order is not, to the extent that it may be so appealed, subject to review…

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• s.28 assigns JR jurisdiction over a dozen named delegates to the Court of Appeal

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• Concept of “originating” (or “original”) and “exclusive” jurisdiction

• s.28 assigns JR jurisdiction over a dozen named delegates to the Court of Appeal

• if delegate not named in s.28 or another statute, then s.18 governs

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• s-s.18.1(1): anyone “directly affected by the matter in respect of which relief is sought”• includes “public interest standing”• public interest standing may be accorded where the applicant has a genuine interest in a real issue and there is no evidence of others with a genuine interest that could reasonably be expected to bring a challenge.

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•s.18.1(2), application for JR must be filed within 30 days after decision first communicated

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•File notice of application• in the notice of application, set out: the division of the court; the names of the applicant and the respondent; the delegate who is being reviewed; the date on which the delegate's decision was communicated; the relief sought; the grounds to be argued; list of documentary evidence

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• s.18.1(4)

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• s.18.1(3):

On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) Declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

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Federal Checklist:

1. Was the decision made by a federal board, commission or tribunal as defined by s.2?

2. Is there a statutory appeal available to one of the bodies listed in s.18.5? 3. If there is no statutory appeal or the appeal has been exhausted, is the

delegate listed in s.28 or does the delegating statute provide for JR to the Court of Appeal?

4. Do you have standing to bring an application, either because you are directly affected or via the public interest standing test?

5. Are you within the 30 day window?6. What are the grounds for review?7. What remedies are you seeking?

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Federal Checklist:

1. Was the decision made by a federal board, commission or tribunal as defined by s.2?

2. Is there a statutory appeal available to one of the bodies listed in s.18.5? 3. If there is no statutory appeal or the appeal has been exhausted, is the

delegate listed in s.28 or does the delegating statute provide for JR to the Court of Appeal?

4. Do you have standing to bring an application, either because you are directly affected or via the public interest standing test?

5. Are you within the 30 day window?6. What are the grounds for review?7. What remedies are you seeking?

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Question 3: On what grounds is control exercised?Conceptual introduction to grounds for judicial review


1. What do we mean by “grounds” for judicial review?

A. Exceeding limits imposed by the Constitution

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1. What do we mean by “grounds” for judicial review?B. Limits imposed at common law

i.e. procedural fairnessi.e. abuse of discretion

C. Limits imposed by procedural statutes like the SPPA and the Bill of Rights

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1. What do we mean by “grounds” for judicial review?D. Exceeding the limits of the statute

delegating powere.g. statute gives delegate jurisdiction in Ontario; operates in Quebece.g. statute gives delegate powers over lobster fishing; regulates deer hunting

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2. What is a “privative clause”?

• privative clauses are statutory provisions whose intended effect is to make the delegate's decision final and binding, and prevent any review of the delegate's decision by the courts

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• privative clauses are statutory provisions whose intended effect is to make the delegate's decision final and binding, and prevent any review of the delegate's decision by the courts

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2. What is a “privative clause”?1. Reduce protracted delays

associated with court action2. Reduce expense associated

with court action3. Allow matters better dealt

with administratively to be dealt with by delegates

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Ontario Labour Relations Act114. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes…

116. No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

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Ontario Employment Standards Act68(25) A decision of the Board under this section is final and binding upon the parties to the decision and such other parties as the Board may specify.

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2. What is a “privative clause”?• Court’s don’t accept that

privative clauses can remove review for jurisdiction

• Jacmain (SCC) (1978): "It is hard to believe that a legislature would create a tribunal with a limited jurisdiction and yet bestow on such tribunal [by shielding it from judicial review] an unlimited power to determine the extent of its jurisdiction."

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• Jacmain (SCC) (1978): "It is hard to believe that a legislature would create a tribunal with a limited jurisdiction and yet bestow on such tribunal [by shielding it from judicial review] an unlimited power to determine the extent of its jurisdiction."

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• Constitutional basis: Crevier (SCC):“...this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. . . . “

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3. What do we mean by “curial deference”?

• "curial deference" means deference by the courts to the decisions of delegates

• Why curial deference? • Wilson J in Corn

Growers

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.Is the error of law within the pie (intra-jurisdictional)?

Or is the error jurisdictional?

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.Is the error of law within the pie (intra-jurisdictional)?


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Old approach: preliminary question doctrine• i.e. a delegate can regulate lobster fishing where there is a shortage of lobster• failed to establish test for what was “preliminary question” and what wasn’t

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Is the error of law within the pie (intra-jurisdictional)?


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•Yikes!!#@@!$#!: the idea of a “spectrum” standards of review imported into judicial review

• Pushpanathan, SCC 1. Privative clause

(wording of Act)2. Expertise3. Purpose of

Act/Provision4. Nature of

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•Yikes!!#@@!$#!: the idea of a “spectrum” standards of review imported into judicial review

• The Emperor has no clothes!

• Lebel J.’s assessment in his concurring opinion in Toronto v. CUPE

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Question 3: On what grounds is control exercised?The Grand Unified Theory of Standard of Review ?


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•Back to the Future: Smith v. Alliance, 2011 SCC 7:

Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” ...; (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54).

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Documents

CML 2312: Administrative Law