Administrative Law

the legitimate roles of the state, individual autonomy, democratic values

(including the rule of law)
Admin law raises questions about the nature of law:
admin law is the law governing the implementation of public programs,
particularly at the point of delivery, where they are likely to have the most
impact on the lives and rights of individuals,
o these programs are administered under the authority of a statute,
enacted by either the Parliament of Canada or a provincial or territorial
legislature, depending on the level of government
Procedural fairness, abuse of discretion, and interpretation of legislation

Public Programs:
Early on - regulation of public interests of "natural monopolies" as electricity,
natural gas, railways, and telephones
Urbanization required the regulation of land use
NOW - consumer protection - protection of individuals from discrimination and
the mitigation of climate change
Deregulation, privatization and lower taxes have been the principal rallying
cries
globalization taking a rules based form in the North American Free Trade
Agreement (NAFTA) constrains the government to design and deliver
programs of regulation and social benefits.
This has prompted governments to reconfigure the institutional structure of
the state including the role of domestic courts and international arbitration
government concentration is on economic power, social inequality, threats of
economical decline or global epidemics and other limitations of the market's
capacity to regulate human behaviour for social ends.
See examples of the regulatory roles of the state with respect to public
programs on pages 6-8
Public programs may also be distinguished on the basis of whether they
achieve their aims by conferring benefits on individuals or by imposing
restrictions on other wise lawful activities. This distinction can be expressed
as the welfare and regulatory roles of the state
regulatory programs are intended to confer benefits on members of the
public, for example, as consumers, residents etc.
programs that directly regulate relationships between private individuals
create benefits and impose obligations that are legally enforceable.
o ie. employees are entitled to certain statutory benefits, including
wages, which employees are obliged to provide. And while human
rights provide and pay equity legislation regulates individuals' freedom
of contract, it also provides legal redress to victims of unlawful
discrimination.
Institutions of the Administrative States
an outline of the role that each institution plays in the design and delivery of
public programs in the administrative state.

Legislatures:
Legislature is the principal public forum where the most important political
decisions taken in the nature of the electorate are explained, debated and
(usually) approved.
nearly all public programs originate with a statute enacted by either the
provincial or territorial or federal legislature in order to create new legal
rights and duties
the legislation that establishes the program, the legislature will have a role to
play in its subsequent administration.
o Ex. the legislature may consider regulations made by the Cabinet or a
minister under a power delegated by the statute in order to flesh out
the often bare-bones term of the legislation
Cabinet and Ministers:
the Cabinet is made up of various ministers and is chaired by the Prime
Minister or Premier, who assigns ministerial responsibilities.
The Cabinet adopts strategic policies, sets budgets and passes regulations
and orders in council.
the members of Cabinet are responsible collectively to Parliament (or the
legislature) for the conduct of the government.
Working through Cabinet, ministers must find ways to exercise their
individual responsibility in a way that will be supported by all ministers
Cabinet is also known federally as the governor in council and provincially or
territorially as the lieutenant governor in council, which means the Queen's
representative as advised by the members of Cabinet.
A minister has responsibility for a (federal) department or (provincial)
ministry that is normally established by statute.
Municipalities:
Municipalities exercise powers that are delegated by the provincial
legislatures, including tax powers.
municipal officials exercise delegated statutory power in order to deliver
many of these programs
Crown Corporations:
. pg. 11
.
Private Bodies and Public Functions:
private bodies are found in the borderland between government and the
private sector
pg 12

Political and Administrative Redress of Individual Grievances

the focus is on the role of the courts in reviewing administrative agencies and
on the remedies that a court may award where the decision-maker is found to
have acted unlawfully.
issues of judicial review

Chapter 5 (SB): Procedural Fairness

Development of "duty of fairness"
From Natural Justice to Fairness
"Judicial" and Quasi-judicial" decisions were required to be made in
accordance with the rules of natural justice: audi alteram partem, requiring a
decision-maker to 'hear the other side' in a dispute before deciding and nemo
judex in sua causa, which precludes a man from being a 'judge in his own
cause'.
administrative decisions (virtually any decision other than a judicial or quasijudicial decision) could be made without any procedural impediments.
to obtain procedural protection an applicant had to convince a court that a
particular decision could properly be characterized as judicial or quasijudicial.
a successful applicant would receive the full range of natural justice
protection.
an unsuccessful applicant would receive no procedural protection at all
Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners - pg.150
concerned the summary dismissal of a probationary police constable 15
months into his term of service.
he was not given a reason for his dismissal
regulations made under provincial legislation provided that police officers
could not be penalized without a hearing and right of appeal, but added that
the Board of Commissioners of Police had authority 'to dispense with the
services of any constable within eighteen months of his becoming a
constable'.
under the traditional common-law approach that would have been the end of
the matter; Nicholson was not entitled to a hearing before his dismissal, nor
could his dismissal be characterized as the sort of 'judicial or quasi-judicial'
decision to which natural justice.
It was an administrative matter and as such, Nicholson would not have been
entitled to any protection at all.
5:4 majority of the Supreme Court held that a general duty of 'procedural
fairness' applies to administrative decisions.
'The classification of statutory functions as judicial, quasi-judicial or
administrative is often very difficult; 'to endow (provide) some with
procedural protection while denying others any at all would work injustice
when the results of statutory decisions raise the same serious consequences
for those adversely affected, regardless of the classification of the function in
question.'
On this approach, the ability of the board to dismiss Nicholson for any reason
(or none at all) was irrelevant.
Nicholson could not claim the procedural protection the regulations afforded
to those with 18 months of service (that is, an oral hearing with a right of
appeal) but, according to Laskin C.J., it did not follow that he must be denied
any protection at all. Nicholson was entitled to be treated fairly not arbitrarily;
he was entitled to be told why he was being dismissed and given an
opportunity to make submissions-- orally or in writing, at the board's
discretion-- before he was dismissed.

Laskin accepted as a common-law principle the notion that "in the sphere of
the so-called quasi-judicial the rules of natural justice run, and that in the
administrative or executive field there is a general duty of fairness"
in subsquent cases, the duty of fairness came to replace natural justice
duty of fairness applies across the spectrum of decisions that public
authorities may make and the requirements of the duty vary
duty of fairness is concerned with ensuring that public authorities act fairly in
the course of making decisions, not with the fairness of the actual decisions
they make.
Duty of Fairness requires two things:
1. the right to be heard and
2. the right to an independent and impartial hearing
*Fairness is a common-law concept and subject only to compliance with the
Canadian Charter of Rights and Freedoms, may be limited or even ousted by
ordinary legislation.

CB -Chapter 3: Fairness Sources and Thresholds

Baker Case:
leading case on the factors and principles considered by the courts in
determining the scope and content of the common law duty of procedural
fairness.
it addresses the circumstances in which judges will require public authorities
to observe fair procedures, affording those affected by their decisions the
right to be heard by an independent and impartial decision-maker, and the
specific procedures necessary to achieve this.
Overview of procedural sources: in the order a tribunal would in order to determine
what procedures it is required to afford parties affected by its decisions.
The Enabling Statute: To determine whether it is required by law to afford
procedures and if so, which ones, Courts look at enabling statutes.
an enabling statute may set out a detailed list of procedural requirements
that decision-makers must follow in making specific decisions.

Singh v Canada (MEI) Significance: IMM Act provided a complete

procedural code governing refugee status determinations, thus displaced the
common law duty of procedural fairness
EX. the Immigration Act, 1976 examined by SC in Singh v Canada
(MEI)described the terms the procedures for determination of whether an
individual was a Convention refugee
These included the claimants in-person examination by a senior immigration
officer
In Singh, the provisions of the Immigration Act prescribed a complete
procedural code governing refugee status determinations and thus
superseded and displaced the common law duty of procedural fairness.

Subordinate Legislation:
Legislatures may choose to statutorily delegate to the executive, minister or
board itself, the power to enact regulations /rule of procedural requirements
(because of expertise).
Issue: delegated rule makers are not respecting the wishes and expectations
of the delegator. To minimise this risk delegated legislation is subjected to
various mechanisms of accountability and scrutiny: such as public
consultation or judicial review where statutorily prescribed mandatory steps
for the effective enactment are not followed
Policies and Guidelines:
public authorities will issue guidelines and policies, regarding the procedural
aspects of decision making, which do not set down legally binding
requirements. It is the form of soft law that need not be provided for in the
authorities enabling statute.
They play a dominant role in public authorities decision making
EX. the Immigration and Refugee Protection Act confers on the chairperson of
the Immigration and Refugee Board both the power to make rules respecting
'activities, practice and procedure of each of the division of the board..to
assist members in carrying out their duties.
Only the rules, which are legally binding are subject to governor in council
approval and tabling in Parliament.
Example: The Baker decision: the SC relied on ministerial guidelines "as a
useful indicator" of what constitutes a reasonable interpretation of the
minister's power to grant humanitarian and compassionate exemptions to
Canada's immigration law, illustrates the rigid dichotomy between 'binding'
rules and 'non-binding' guidelines.
General Procedural Statutes
General procedural statutes which constitutes an additional source of
procedural requirement:
Ontario Statutory Powers Procedures Act (SPPA) 1990:
Feature: most detailed statutory codification of procedural
safeguards
Significance: set out procedural safeguards that broaden powers
if boards to structure on proceedings efficiently
Alberta Administrative Procedures and Jurisdiction Act 2000
much less detailed, not conferring broad power
BC Administrative Tribunals Act 2004:
Similar to ON
Empowers tribunals to make own rules governing their practice
and procedure tailored to specific circs
Common Law Procedural Fairness:
If a particular procedure is not required by a public authority's enabling
statute, valid delegated legislation or a general procedural statute, or if the

procedure is required only to a limited extent, the authority may still be

obliged to provide common law procedural fairness.
A party affected by public authority's decision is entitled to (1) be heard by
the authority (2) in an impartial and independent hearing.
This concept of 'procedural fairness descends from the rules of 'natural
justice' which historically, imposed on tribunals exercising judicial or quasijudicial functions
Historical evolution from natural justice to procedural fairness:
Cooper v Board of Works for Wandsworth District
fis