Transparency and Institutional Bias in Canadian Administrative Law - Double Aspect Transparency and Institutional Bias in Canadian Administrative Law Why the Dunsmuirian approach is not enough Laverne Jacobs, University of Windsor When it comes to the broad platform of procedural fairness, Dunsmuir itself says very little. and administered in a fair and reasonable manner. Constitutional law relates to organizational structures at rest, while administrative law relates to the organizational structure in motion. powers, as well as the power to administer and implement the laws, to administrative agencies. There are services that can help you find a lawyer, such as: referral services from provincial and territorial law societies. Administrative law is concerned primarily with the legality of administrative decision making and with issues of procedural fairness (rights for those affected by the decision to participate in the decision making process). These are the previously mentioned The decisions and reasoning of administrative bodies are being scrutinized more severely. as security, efficiency or emergency that will reduce the need for procedural fairness. (See alsoDistribution of Powers; Peace, Order and Good Government.) and variousadministrative tribunals. Thanks for contributing to The Canadian Encyclopedia. Applying the standard of review of "reasonableness" on questions of law In Vavilov, the Supreme Court of Canada explicitly did away with the contextual analysis for standard of review previously established in Dunsmuir, in an effort to streamline and simplify the standard of review framework. [5]:39 The presence of an express statutory right of appeal in the enabling statute is understood to mean that the legislature intended the courts to play an appellate role, and apply a less deferential standard of review. the administrative body was reasonable. The government may also rely on administrative bodies or processes to discharge its duty to consult. What remedies may be awarded by the court. Administrative law ensures there is a legal basis for any action by a government representative, such as a citizenship judge. in section 7 of theCharter. There is now Administrative law is: the legal principles relating to the government's powers and organization; the legal control of the government's actions and decisions. When performing substantive review, the court considers the merits of an administrative decision and determines if the decision is so defective that it should be remitted to a different decision maker for reconsideration. In other cases, such as the decision to terminate a lease in a public-subsidized apartment building, courts have held that there is only The content of the duty of fairness depends on the type of right and the circumstances of the case. The number of Updates may vary due to developments in the law and other publishing issues, but subscribers may use this as a rough estimate of future shipments. Where administrative action depends on resolving disputed facts or interpreting astatute, [5]:47 In so doing, the Supreme Court of Canada sought to give greater effect and meaning to the express statutory right of appeal, which is understood to be the key factor representing legislative intention on the standard of review to be applied in judicial review of an administrative decision. This body of law emerged largely over the last century in response to acute fears of a growing and unelected . Advice and insights apply to environmental, immigration, labour and employment, municipal, professional discipline, and all other areas of administrative law. The powers of an administrative decision-maker ("ADM") are primarily created by statute, which is known as the "enabling statute". Statute: a law passed by the legislative branch of a government. Additional Physical Format: Online version: Blake, Sara, 1956-Administrative law in Canada. This new test represents a significant change in the law regarding the availability of constitutional remedies in administrative proceedings. The Administrative Coordinator is responsible for providing administrative support to the HGA Law team. Administrative law - Decisions reviewed - Municipal councils - Judicial review - Remedies - Charter relief Redeemed Christian Church of God v. New Westminster (City), [2022] B.C.J. Where the circumstances satisfy the threshold test to invoke a duty of fairness a claimant will be entitled to certain participatory rights including pre-hearing rights, such as rights related notice, disclosure, discovery, and delay, as well as hearing rights, such as rights related to the form of hearing, counsel, examinations, and reasons for judgment. A court may substitute its own opinion for that of the decision maker. See also Rule of Law; Constitutional Law; Criminal Law; Constitutional law is wider in scope. the superior courts of law to review the actions of inferior administrative bodies. The statutory scheme under which the decision is made. Section 24 (1) of the Charter provides that persons whose rights have been violated may apply to "a court of competent jurisdiction" for relief. The Foundation of Administrative Justice provides training courses for Western Canada's tribunals, and the people who appear before them. Any government agency action can include rulemaking, adjudication, or enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law . Sara retired from the Ontario Government after 35 years practicing a wide variety of litigation including 24 years with the Attorney General and 11 years with the Ontario Securities Commission. regulation will set out the basic procedures that govern the process of decision making; such as what notice must be given of a hearing and to whom; the right to have counsel; the right to call evidence and to cross-examine witnesses. How Tribunals Are Involved If you disagree with a decision that a particular government agency has made that affects you, a special board (an administrative tribunal) will hear your complaint and make a decision about your case. Voith . [11]:101 First is a failure of rationality internal to the reasoning process. Depending on the nature of the decision, a fairly high degree of procedural fairness is required. Therefore, provincial and federal governments delegate many of their law-making Among other things, administrative The password must be 8-50 characters. Administrative law is the body of law that governs the activities of administrative agencies of government. The CBA Administrative Law Section deals with legal practice concerning governmental decision-making and rule-making, including legislation, administrativetribunals, legal practice in government, and administrative powers. There are five factors that affect the content of this duty:[37]. Cross-Canada Coverage. Stay up-to-date on administrative law issues. Rather than attempting to discuss the abundance of case law which emerges yearly from every Canadian jurisdiction, the authors provide a conceptual framework for understanding this ever-changing body of law. Administrative law in Canada by Sara Blake, 1997, Butterworths edition, in English - 2nd ed. Section 23 of the Citizenship Act says the Minister can delegate those powers to those responsible for applying the law. Speed up your checkout, save your information for future purchases and receive exclusive discounts by registering for a secure online account. The fourth modification's restrictions on unreasonable searches and seizures aren't restricted to legal investigations but also apply to administrative inspections. In other words, the process must be fair and meaningful; it must consider and evaluate the impact on Indigenous rights; and it can be subject to judicial review. This is called legal aid. Third, the decision must affect the claimant's rights, privileges or interests. only four units. Courts only exercise oversight if the authority exceeds its jurisdiction; if it follows improper or unfair procedures; if it makes a decision on law that is incorrect; or if it makes a decision on facts that These procedural rights flow from two principles of natural justice, the right to be heard (audi alteram partem) and right to be judged impartially (nemo judex in sua causa). The members part gets a quarterly magazine, together with the Administrative Law Review, and the yearly Developments in Administrative Law arena. [40], Once a court has determined that there has been a reasonable apprehension of bias, the decision in question must be void ab initio, as there is no remedy for the damage created by the apprehension of bias. Canadian courts generally defer TheSupreme Court of Canadahas held that procedural fairness incorporates the principles of fundamental justice If the decision affects a persons Charter orhuman rights, In some cases, the enabling legislation limits the power granted to an administrative authority. The five modules of our study material cover a variety of topics such as separation of powers, Dicey's concept of the rule of law, Administrative Tribunals and the Commission of Inquiry Act, 1952. This does not present a problem. In other cases, individuals challenging the constitutionality of legislation may seek to represent a broader What should I do if I believe a tribunal may be biased against me? There may be policy reasons such Signing up enhances your TCE experience with the ability to save items to your personal reading list, and access the interactive map. Under the standard of review analysis, courts consider factors such as precedents, the relative expertise of the decision maker, the nature of the issue in dispute and the content and context of the governing legislation. Independence is one important indicator of whether there is an appearance of bias in an administrative body. Administrative Law Assignment Sample Online. Where an agency or decision maker can produce written reasons that show consideration of formal policies and guidelines and the More than 36,000 lawyers stay sharp through membership in the CBA. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) ( Vavilov) is the result of that hearing, and Vavilov has, once again, amended the law applicable to selecting and applying the standard of review. Six fundamental principles of administrative law. Common-law doctrine operates in tandem with any laws relating to the issues being considered. Advice and insights apply to environmental, immigration, labour and employment, municipal, professional discipline, and all other areas of administrative law. 1 Administrative Law in Canada Student's Name Professor Institution Course Date 2 Administrative Law in [11]:100 In Vavilov, the [Supreme Court of Canada] gave, as example, two types of fundamental flaws in an administrative decision. According to Canadian Union of Public Employees v Ontario (Minister of Labour),[30] if the promise is clear, unambiguous and unqualified representation as to a procedure, then it creates a legitimate expectation. ISBN/ISSN: 9780433514756. If the statute sets out rights of appeal, less procedural Administrative Law In Canada. Legal Bites brings you a detailed study of Administrative Law. In Canada, administrative law is one of three types of law that are applicable to the entire country. However, this changed in Baker where the Supreme Court of Canada emphasized the awkward line between questions of law and discretion. Administrative agencies must follow proper procedure in arriving at their decisions. An appeal court's standard of review of a lower court's order where the appeal issues are divided between question(s) of fact and question(s) of law. Administrative law ensures that government actions This section contains policy, procedures and guidance used by IRCC staff. Although administrative independence is not required to be as strict as judicial independence, there are still certain minimum requirements such as security of tenure and independent administrative control. [6]:37 This means that when considering questions of law raised in the appeal, the court would apply the standard of correctness. In other situations, parties may rely on the historic and constitutional ability of In Canada (Minister of Citizenship and Immigration) v Vavilov, the Supreme Court of Canada held that where a statute provides for an appeal from an administrative decision to a court, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis. The eighth edition includes an in-depth analysis of the Supreme Court of Canada's 2019 Vavilov . The decisions or actions of a federal administrative agency are reviewed by theFederal Court of Canada. Three kinds of individuals and bodies that must observe the principles of administrative law, and the kinds of exercises of power that administrative law governs. 3. CBA Membership gives you access to complimentary accredited professional development programs from across Canada. 1. This content has been updated on January 15, 2021 at 03:53. authority, they are said to have exceeded their jurisdiction. In serious cases affecting individuals, such as For example, a tribunal empowered to regulate rents in apartment buildings of 10 units or more does not have jurisdiction to regulate rents in buildings with Administrative Law Conference 2022 Product Type: Course Session 1 Courses - Webinar Start Date & Time Courses - Rebroadcast Start Date & Time Description More Detail Agenda Featuring the Honourable Mr. Justice Mahmud Jamal, Supreme Court of Canada Friday, October 21, 2022 9:00 am - 4:00 pm via webinar Rebroadcast Jump Start on CPD 2023 This authoritative casebook provides a collaborative analysis of key principles and seminal cases by leveraging the voices of Canada's leading . This includes any body or person exercising powers under federal law. Also,provincial governmentscannot Delay, without more, will not warrant a stay of proceedings as an abuse of process. [5], A court hearing such an appeal must apply appellate standards of review to the administrative decision. InRoncarelli v. Duplessis, theSupreme Court of Canadaheld That is, the law concerns the manner in which courts can review the decisions of administrative decision makers such as a board, tribunal, commission, agency, or Crown minister, while exercising ministerial discretion. fairness is required than if the decision is final. What constitutes procedural fairness will depend upon the nature of the power being exercised; the party affected; the results of the intended action; and the practicalities of time-consuming procedures. laws must not infringe upon the rights and liberties guaranteed by theCanadian Charter of Rights and Freedoms; nor attempt to regulate However, the courts have recognized that these tribunals may make decisions that the court, if it were deciding the issue, The rationale for this is that the administrative decision makers are closer to the evidence. At its most basic level, administrative law is the part of the law that governs the activities of administrative agencies in government. $11.92 - $54.00 2 Used from $7.95 2 New from $53.99. [39] However, administrative independence is not guaranteed under the constitution, and can be ousted by statutory language. Cross-Canada Coverage In the seventh edition of Administrative Law in Canada, author Sara Blake explains in plain language the latest developments relating to the powers and procedures of the many and varied public officials, boards and agencies that exercise statutory authority. For more information and to change settings click here. Tribunals are set up by federal or provincial legislation; this is known as "empowering legislation." Tribunals are commonly known as commissions or boards. Published: May 31, 2022. It also prohibits discrimination by providing equality. Every action that a government or government agency in Canada takes is subject to the administrative law that ensures legal operation is maintained across all aspects of Canadian infrastructure. Cannot include your user id. [11]:10t:102[15]:47 A reviewing court may find a decision unreasonable when it is examined against contextual considerations such as the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. In this way the courts have found procedural fairness through a promise by an ADM. Subscribers may call Customer Support at 800-833-9844 for additional information. Though the wider definition of administrative law in Canada is much more complex, it can be best understood as the governing of government. If a court finds a breach of the duty of fairness, it may cancel the decision and send it back to be made again properly; or it may stay the proceedings in the case of Tribunal: an administrative body that has authority in a specific area. It sets standards that government officials must meet in making decisions about individuals. are authorized by Parliament or by provincial legislatures, and that laws are implemented Cowan, J. In determining the standard of review, courts will take a pragmatic and functional approach. Courts will consider decisions on the standard of correctness; in other words, the decision of the administrative body must match the courts own findings. Cowan, J.g.. "Administrative Law in Canada". (SeeCourt System of Canada.) [7][8][9], There are two standards of review available to courts: reasonableness and correctness. Our team will be reviewing your submission and get back to you with any further questions. The Q&A gives a high level overview of the key legal concepts including the constitution, system of governance and the general legislative process; the main sources of law; the court structure and hierarchy; the judiciary and its appointment; the general rules of civil and criminal litigation . statutesare not always clear. Includes updates to all aspects of procedural fairness, evidence disclosure and fact finding, discretion and bias and on the following topics: Practical and Easy-to-Understand Writing and Guidance For: Lawyer Sara Blake is now in private practice restricted to clients who exercise statutory and regulatory powers. This is called the standard of review. It is the Fall and as the leaves fall so too are forests felled to print the annual 'year in review' papers. Canadian Administrative Law appears to be one of the toughest subjects under the NCA syllabus. What is the scope of the tribunal's decision-making powers? premierofQuebecliable for $25,000 for wrongfully cancelling a liquor license because he JusticeNet (telephone: 1-866-919-3219) Depending on your income, you may be able to get a lawyer for free. authority making an administrative decision which affects the rights, privileges or interests of an individual 3 (but not an administrative decision that is legis-lative in nature).4 In Canada today, this includes a myriad of authorities ranging from the single delegate issuing dog licenses to major boards wielding great Courts, when applying administrative law, look to ensure that administrative or governmental actors and bodies observe and act within the legal limits on their authority. termination of a disabilitypension. a duty to act fairly. This is satisfied if the tenant is informed of the complaints made against him or her and is provided with the chance to answer or to remedy them. These agencies are involved in virtually every area of government activity. Decisions that are of a "legislative or general nature" which are based on broad policy issues rather than points of law are not likely to warrant a duty of fairness. The position acts as a member of the Faculty's management team and participates in Faculty and Career Services Office initiatives, organizes resources, analyzes confidential data (often sensitive in nature) and . appeals have not prevented the courts from reviewing the decisions of these tribunals where there is an excess of jurisdiction. If a decision maker relies on irrelevant information or fails to consider relevant information, courts may review the decision. Administrative tribunals must be free from an appearance of bias - that is, a reasonable person must conclude that an administrative decision-maker is sufficiently free of factors that could interfere with the ability to make impartial judgments (commonly known as the "reasonable apprehension of bias" test)[38] This is derived from the natural justice principle of nemo judex in sua causa, or the right to be judged impartially. The common law imposes a minimum duty of fairness in certain administrative proceedings. tribunal is impartial and not biased. When no reasons have been provided and neither the record nor the larger context sheds light on the basis for the decision, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable. [6]:37 When reviewing questions of fact (or questions of mixed fact and law when the legal principle is not readily extricable), the court applies the standard of "palpable and overriding error". Third, certaincommon-lawprinciples impose limits or obligations upon tribunals. The court will give no deference at all and will judge the decision on the basis of whether it is correct in law. Administrative Law In Canada. Subscribers are advised of the number of Updates that were made to the particular publication the prior year. First, the nature of the decision must be sufficiently administrative or quasi-judicial. The superior courts in each province are responsible for granting these remedies where provincial administrative action is challenged. A mere look at the big size of the 7th edition of "Administrative Law, Cases, Texts & Materials" by Gus Van Harten and others is enough to intimidate. Courts consider how much deference they must give to an administrative decision maker. 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