Syllabus

Canadian
Administrative
Law
Revised April 2023

Candidates are advised that the syllabus may be updated from

time-to-time without prior notice.

Candidates are responsible for obtaining the most current syllabus

available.

V.2

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 Canadian Administrative Law

NATURE OF THE COURSE

Administrative Law is the body of law regulating the ways in which government operates. It is
about the rules and limits that apply to not only the operations of the Crown, Cabinets, Ministers,
government departments, and municipal corporations but also the various administrative
tribunals and agencies governments use for the carrying out of governmental functions of all
kinds. It is concerned with the procedures by which all these various instruments of government
operate, the substantive scope of their mandates, and the remedial structures that exist to
ensure that decision-makers of various kinds act in accordance with the rule of law.

Some regard Administrative Law as simply a subset of Constitutional Law and, to the extent
that, for example, the Canadian Charter of Rights and Freedoms and other constitutional and
quasi-constitutional enactments (such as the Canadian Bill of Rights) serve to place limits or
constraints on the way in which public decision-makers act, there is overlap between this
subject and Constitutional Law. However, Administrative Law is not about the policing of the
divide between federal and provincial jurisdiction enshrined in the Constitution Act,1867 and the
other statutes that constitute the Canadian constitution. Nor does it concern itself in detail with
the constitutional incidents of the Crown, Parliament and the various legislative assemblies, or
the executive branch.

Rather the primary questions considered in this course are:

1. The circumstances under which governmental decision-makers are subject to an obligation

of procedural fairness to those affected by their decisions, and, where applicable, the
content of that obligation.

2. The extent to which the substantive decisions of administrative decision-makers are subject
to merits scrutiny by the courts, and if so, what is the standard of review that reviewing
courts bring to bear.

3. The remedial framework within which the superior courts, both federally and provincially,
exercise their review powers.

Some of you will bring to this subject some knowledge of Administrative Law acquired during
your legal studies in other jurisdictions. Sometimes, that knowledge will be useful even if the
applicable case law is different. However, be very cautious in relying on knowledge gained
elsewhere. There are some very distinctive aspects of Canadian public law that do not find
analogues or exact parallels in other jurisdictions, including those sharing a common law or
Commonwealth heritage.

In answering the examination in this course, you act at your peril if you automatically
start applying the principles and the case law from the jurisdiction of your initial legal
training.

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CASEBOOK

The assigned material on which candidates will be examined is: Heckman, Mullan, Promislow
and Van Harten (referred to as CB), Administrative Law: Cases, Text & Materials (Toronto:
Emond Montgomery Publications Ltd., 8th ed., 2021).

Detailed page assignments are outlined below in the study guide. These page assignments
should be taken seriously. Do not assume that you will be able to pass this subject by simply
reading one of the supplementary texts from the list below or even notes based on or provided
by various courses and websites that offer assistance in preparing for NCA exams.

Knowledge of the assigned readings is essential.

OBJECTIVES

Candidates should master these materials and the principles of Administrative Law embodied in
the various segments of the course to the extent necessary to enable them to answer problem-
type questions on a three-hour, open book final examination. Sample exams are available
online at the NCA website.

As well as knowledge of the principles and rules of Canadian Administrative Law, candidates
are expected to display an aptitude for the application of that knowledge in the context of
specific fact situations. That will involve an ability to analyse and distil relatively complex facts,
to relate the law as identified to the salient facts, and to reason towards a conclusion in the form
of advice to a client or the likely judgment of a court confronted by such a problem. Since
Administrative Law usually involves powers bestowed on administrative decision-makers by
statute, students will often be required to read and understand statutory provisions provided on
the exam that empower administrative actors.

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SUPPLEMENTARY TEXTS

Candidates wishing to consult texts for further clarification and elaboration of the various
principles of Administrative Law are directed to the following:

 Colleen Flood and Paul Daly, Administrative Law in Context (Toronto, Emond Montgomery,
4th ed., 2022).
 Sara Blake, Administrative Law in Canada (Toronto: LexisNexis-Butterworths, 7th ed.,
2022).
 David Phillip Jones and Anne S. de Villars, Principles of Administrative Law (Toronto:
Carswell, 7th ed., 2020).
 Guy Régimbald, Canadian Administrative Law (Toronto: LexisNexis Canada, 3rd ed., 2021).

A series of video primers on Canadian Administrative Law are posted at:

https://www.craigforcese.com/administrative-law-1

If you rely on older resources, please be attentive to the fact that Administrative Law has been
in a state of flux and older texts may be out of date because of subsequent Supreme Court of
Canada cases, especially Canada (Minister of Citizenship and Immigration v. Vavilov, 2019
SCC 65 [hereafter Vavilov]. Not only has it changed the principles under which Canadian courts
will determine applications for judicial review and statutory appeals on substantive grounds, but
it has also rendered incorrect much of the previously assigned material on substantive review in
earlier syllabi.

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Subject Matter CB
(begin at the first heading on the first assigned
page and end at the first heading of the last
assigned page, if any, unless otherwise instructed)

1. Setting the Stage CB, Chapter 1

One of the most important things to understanding studying administrative law is the
“big picture”. A failure to do so may result in candidates becoming lost in extraneous
details.

The critical idea at the core of Administrative Law is this: it is the body of law that
governs how people exercising power pursuant to a delegation of power in a statute
(or occasionally the royal prerogative) go about their business. In most cases, the
people who have this form of power (again, typically given to them by a statute) are
members of the executive branch of government, although often at some arm’s
length from it. In our system, based on the rule of law, we want to make sure that
people with this power exercise it properly. Almost all of administrative law is about
deciding what we mean by “properly”.

CB chapter 1 provides an excellent overview of why administrative law matters, and

also the core elements of administrative law doctrine. In this syllabus, we divide the
discipline into three parts:
 procedural fairness (or more generally, procedural expectations that
administrative decision-makers must meet);
 substantive constraints (or more generally the sorts of substantive errors in
deciding the merits of a matter that administrative decision-makers must
avoid); and
 how to challenge administrative decisions and remedies on judicial review (or
more generally, the relief available to a person who wishes to challenge an
administrative decision and the procedure to be followed in seeking this
relief).

(One word of warning: CB, p.21-22 outlines a high-level description of grounds of

judicial review in administrative law. It is correct in a general sense, but it is very
much at the “conceptual” categorization – the actual way in which courts apply
grounds of review is different. Do not apply the principles on p 21-22 to an exam
question – you need to be guided by the more specific tests that follow in materials
incorporated in this syllabus.)

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PROCEDURAL FAIRNESS MATERIALS

2. Sources of Procedural Obligations CB 59-79

We begin with procedural obligations that administrative decision-makers must

observe in exercising their powers. The starting point is understanding where
these come from. As the assigned readings suggest, the answer is: from
several places. The assigned readings talk about enabling legislation,
delegated legislation, guidelines (although for reasons discussed in the
material below, be cautious with these), and the common law. We also include
a few pages discussing “general statutes about procedure” – that is, special
provincial-level statutes imposing procedural rules on the provincial
administrative decision- makers to which they apply.

To this list, you must also add the Charter of Rights and Freedoms (section 7 is
really the only provision that matters for our purposes) and (for federal
administrative decision-makers), the Canadian Bill of Rights, as well as
constitutional principles underlying the duty to consult Indigenous Peoples and,
in certain circumstances, accommodate Indigenous rights and interests.

3. Procedural Obligation Triggers (Knight “Three-Prong” Trigger and CB 79-157

the Concept of “Legitimate Expectation”)

Now that you understand that procedural obligations come from a number of
different sources, you need to understand which of these procedural rules
applies where. We call this the “trigger” (or threshold) – where is a given
procedural obligation triggered? Where procedural rules come from legislation
(typically, but not always, the legislation that gives the decision-maker his or
her powers in the first place), the answer to the trigger question is in the
legislation itself. So too with the “general statutes about procedure” – they
contain their own triggers. So, you need to be careful to read that legislation if it
applies to your decision-maker.

A word of warning: make sure the statute does apply to your decision-maker.
Ask: could a provincial general procedural statute ever apply to a federal
administrative decision-maker?

Also, realize that, even where there is a statutory provision for a hearing, there
may be questions as to who is entitled to participate. This is particularly
important where the matters in issue are hearings about big projects such as
oil and gas pipelines. Here too, the terms of the statutory provisions may be
critical, and issues can arise out of sections that give the hearing body
discretion as to participatory rights.

We can make more general observations about other sources of procedural

obligations. The readings focus in particular on the trigger for common law
procedural fairness. Basically, there are two triggers: what we can call the

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Knight v. Indian Head (three-prong) trigger and a concept known as legitimate
expectation. Where the requirements of these triggers are met, then procedural
fairness is owed by the administrative decision-maker. What that means in
practice is a more complex discussion involving consideration of the content of
the procedural fairness. More on that below.

For our purposes here, make sure you understand when common law procedural
fairness is triggered. And be sure you focus your attention on the modern rules –
there is history in these readings, which should help clarify where the modern rule
comes from. But history is history, and on the exam you need to understand the
rule that applies now.

Pay attention to some of the exceptions and constraints on the triggers as well.
So, for legitimate expectations, note the courts’ views on procedural versus
substantive promises. For the Knight trigger, the readings talk about final versus
preliminary decisions (and the related issue of investigations and
recommendations). Note also exceptions to this exception.

We turn to other exceptions to the triggering of procedural fairness in the next

section.

4. Procedural Obligation Triggers (Legislative Decisions & Emergencies) Cont’d

Common law procedural fairness rules may also fail to be triggered where there
are emergencies, and also where a decision is said to be of a “legislative” nature.
Be wary of the latter; it is a very ambiguous concept. In its clearest form, it means
no procedural fairness where an administrative decision-maker is introducing,
e.g., a regulation (that is, a form of delegated legislation). But a “legislative
decision” means more than this – boiled down to its essence, it can be a decision
that is sufficiently general, and not particular to or focused on a reasonably
narrow subset of persons. You need to contemplate exactly what this means in
looking at the readings. And you need to appreciate that the general rule – no
procedural fairness where decision is legislative in nature – is itself subject to
exceptions.

5. Procedural Obligation Triggers (Charter & Bill of Rights) Cont’d

The readings also address triggers for another source of procedural obligations:
Charter s.7 and Bill of Rights. A first observation on the Charter. This is an exam
on administrative law, not constitutional or criminal law. It will almost always be
wrong in an administrative law exam to discuss Charter rights other than section 7
– you are not being examined on s.11 rights or s. 2 or s.15. (Section 11(d) for
instance almost never applies to administrative bodies, unless the criteria for its
application are met by, for example, the existence of contempt powers).

But with section 7, the situation is different because this provision does impose
the requirement to observe “fundamental justice” – a concept with procedural

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content – on at least some administrative decision-makers. Which ones? Well,
those making decisions that implicate life, liberty or security of the person. Do not
make the mistake of assuming that all (or even much) administrative decision-
making relates to these interests. But some of it does and you need to understand
how and where this trigger works.

The Canadian Bill of Rights is similar in many respects, but not all. Note carefully
to whom it applies. Think about whether you ever want to say that a decision-
maker exercising power under a provincial statute is subject to the Bill. Also look
at the triggers for sections 1(a) and 2(e) and note the extent to which they are the
same as and differ from Charter s.7. Above all, recognize that these two
provisions have their own triggers that must be satisfied before they apply at all.

6. Procedural Obligation Triggers (Constitutional Duty to Consult and CB 391-432

Accommodate Indigenous Peoples)

Canada’s Indigenous Peoples have special, constitutionally protected rights to

consultation before decisions (such as the location of oil and gas pipelines) are
taken that affect their Indigenous rights and claims. The duty is one that is owed
by the Crown. However, the Crown may rely on agencies and tribunals to fulfill
that obligation. Where relevant to their proceedings, agencies and tribunals may
also have an obligation to assess whether the Crown has already fulfilled those
responsibilities. There is a growing body of law elaborating the circumstances
under which the duty to consult is triggered, the appropriate venues for both
consultation and dealing with issues of consultation, the scope or intensity of any
consultation, and the remedial consequences of a failure to consult. Beyond that
lie many unresolved substantive issues as to when and, in what form, the
outcome of consultation generates a right to accommodation. This last question is
beyond the scope of this course. However, the assigned materials should be read
as a primer on the procedural aspects of the duty to consult and accommodate
and provide you with the knowledge required to address these questions when
they surface across a broad range of decision-making powers and functionaries.

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7. Content of Procedural Obligations (Right to be Heard) CB 30-39 (Baker up to
section (2); 159-265
We turn now to this question: if procedural obligations are triggered, what does (except 216-228
the decision-maker have to do? Or more concretely, what is the content of these (excluding section 4 of
procedural obligations? the CB up to the
Charkaoui judgment);
If your procedural obligation comes from a statute – the enabling Act or one of the Haghshenas v. Canada
special legislated procedural codes -- the answer to this question is: “whatever (Citizenship and
the statute says is the content is the content”. (However, there may be occasions Immigration), 2023 FC
in which you will have to determine whether the statute is a “complete code” or 464 (CanLII),
leaves room for common law supplementation.) <https://canlii.ca/t/jwhkd>
Life is more complex if your trigger is the common law, Charter or Bill of Rights.
While there are some differences, generally speaking, the content where these
sources apply boils down to two broad classes of procedural rules: a right to be
heard and a right to an unbiased and independent decision-maker.
Within these two classes, there are many details, and you still need to understand
“what does it mean in practice to have a right to be heard and what does it mean
in practice to have a right to an unbiased decision-maker”.
The basic issue is this: the precise content of procedural rules coming from the
common law, Charter or Bill of Rights varies from case to case according to the
circumstances. Certainly, with respect to the right to be heard, you must start with
the Baker considerations: Baker gives you a (non-exclusive) list of considerations
that tell you at least something about content. Specifically, the Baker test
suggests whether the content will be robust or not. (It actually tells you a little bit
more if your trigger is legitimate expectations: with legitimate expectations, the
content of the procedural obligation is generally what was promised in the
procedural promise that gave rise to the legitimate expectation in the first place. If
the promise was substantive, you will not be able to enforce it directly, but at the
very least, it may lead to enhanced or more procedural fairness.)
Of course, one can’t stop at an outcome that just says “robust or lots of
procedural fairness, or not”. That’s not enough. One has to unpack that concept
and focus on specific procedural entitlements: how much notice; what sort of
hearing; how much disclosure, etc., etc. So the readings review a series of
procedural entitlements and propose some lessons on when these particular
procedural entitlements might exist and to what degree. Be attentive to this
jurisprudence.
A word of warning: when it comes to an examination, you do need to explore
which procedural entitlements are owed and whether they have been met, but if
you pay no heed to the sorts of circumstances that give rise to these specific
entitlements, you may end up with an implausible laundry list of procedural rules
that you say should apply when they really don’t. An uncritical laundry list is not
satisfactory analysis and does not generate more marks.

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8. Content of Procedural Obligations (Unbiased and Independent CB 267-319
Decision-maker)

The second broad class of procedural obligations associated with the common
law, Charter s.7 and the Bill of Rights is the right to an unbiased decision
maker.

Here the material deals with bias stemming from individual conduct (attitudinal
bias or prejudgment; pecuniary interests; past conduct etc.). Here too there are
tests for exactly what rule barring bias applies to a given administrative
decision-maker. There is not just one universal standard, especially when it
comes to alleged prejudgment or attitudinal bias. These readings will help you
understand what the tests are and where they apply.

The materials also deal with “independence” or institutional bias. A word of

warning: Do not rush to the assumption that independence rules flow from all
instances where procedural entitlements might be owed. It would be wrong, for
example, to urge that where a statute creates an administrative regime that you
think is insufficiently independent, common law procedural fairness can be
used to attack this arrangement. Be attentive to the discussion in the materials.
The common law cannot prevail over a statute. There, your independence
argument would have to be based on a s.7 Charter or Bill of Rights source,
assuming these are even triggered.

9. Content of Procedural Obligations (Issues arising from institutional CB 321-375

decision-making)

In this part, we deal with an area that has elements of both the right to be heard
and the right to an unbiased decision-maker: institutional decision-making. You
need to understand the concept of subdelegation. The delegatus non potest
delegare concept sounds like a pretty potent bar on an administrative decision-
maker sub-delegating powers to another actor, but there are so many
circumstances where sub-delegation is permissible that, really, sub-delegation
tends to be important only when certain functions are sub-delegated that offend
procedural rules. The concept of “they who hears” is an example, tied to the
right to be heard. This is an issue that becomes complicated when large, multi-
member boards are asked to make decisions that are consistent when they
hear similar cases, but in panels with less than full membership.

Another issue for these big boards, when they try to make consistent decisions,
is when and where bias concepts are offended.

Yet another issue raised by these materials is if these big boards can use
guidelines to try to standardize decisions. If they do, do they wrongly “fetter
their discretion”? (But note that fettering of discretion is a substantive review
issue, and so is really governed by the considerations discussed in the next
section.

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SUBSTANTIVE REVIEW MATERIALS

10. Backdrop to the Standard of Review Analysis CB 436-539

We shift to the second major issue area in administrative law: review on

“substantive” grounds. Historically, substantive errors are errors of fact, mixed
fact and law, law (including statutory interpretation), or discretion, although
these are sometimes labelled in different ways.

In this part, you’ll soon learn that it is not simply enough to look at a decision
and determine whether it reflects an error of fact (a misapprehension of the
facts), of discretion (a wrong choice or outcome) or of law (a misapprehension
of the law). That is because substantive errors are all subject to what is known
as the “standard of review” As a starting point, the reviewing or appellate court
must first determine which of two standards of review (correctness or
reasonableness) governs before evaluating the merits of the grounds of review.
Thereafter, the merits are assessed by reference to the test established by the
SCC for either correctness or reasonableness.

Notice that procedural fairness matters do not require this “standard of review
analysis” – they are usually assessed on a “correctness” standard, with any
question of deference left to tests such as that set out in Baker. So please do
not confuse the approach you apply for “substantive review” with that which
you apply for “procedural review”.

In these background readings, you are introduced to the concept of a privative

clause. Once you understand it – and the courts’ efforts to get around such
clauses – you’ll understand at least part of the initial impetus for standard of
review analyses. Then, there is some history looking at failed precursors to the
standard of review analysis.

At this point Vavilov takes over. Understand it. In particular, understand the
way in which the majority modifies the process of standard of review selection
that had emerged out of the previous leading case of Dunsmuir and its
progeny.

11
11. The Vavilov Tests for Standard of Review Selection and Application CB 541-718; 780-803;
Society of Composers,
Even more importantly, understand Vavilov’s elaboration of how to conduct Authors and Music
reasonableness review, the now predominant standard on applications for Publishers of
judicial review (although not statutory appeals). Canada v. Entertainment
Software Association,
As part of comprehending the changes and elaborations contained in Vavilov, 2022 SCC 30
pay attention to the exceptional circumstances when correctness, not (CanLII),
reasonableness, is the standard on applications for judicial review. Make sure <https://canlii.ca/t/jqgw0>,
you can identify the characteristics of those exceptions. Also appreciate the paras. 22-42.
reasons why the Court rejected previous case law which accepted that
reasonableness was the presumptive standard of review even for matters on
which the legislature had provided for appeal rights. Consider, as well, the recent
dicta in Society of Composers concerning recognition of a new category of
correctness review: concurrent first instance jurisdiction between courts and
administrative bodies.

Also pay attention to the 2012 wrinkle introduced by the SCC in Doré, a wrinkle
to which the majority paid little attention in Vavilov (see para. 57). Doré looks at
what standard of review is applied to an exercise of discretion by an
administrative decision maker who is considering a Charter right in making their
discretionary decision. Short answer: “reasonableness”. Longer answer: But it
may be a different kind of reasonableness review. Reflect on how, if at all, the
Doré approach has been interpreted and/or modified by subsequent case law
such as Trinity Western University, and implicitly, if at all, by Vavilov.

Once you have determined the appropriate standard of review (correctness or

unreasonableness), you may also be required to apply that standard to a
substantive ruling or decision. For this, you should be familiar with the standards
and tests that the SCC has identified for conducting this exercise and be able to
use them appropriately. In particular, continue to reflect on the SCC’s elaboration
in Vavilov of the context sensitive nature of reasonableness scrutiny and how the
Court went on to determine that the decision under review was unreasonable.
What role does the obligation to give reasons for a decision, and any reasons
that are given, play in the determination of whether a decision is unreasonable?
Consider also the companion judgment in Bell Canada where the SCC applying
Vavilov deploys the standard of correctness in a case which commenced by way
of a statutory appeal from a tribunal’s determinations of questions of law
involving statutory interpretation. Appreciate what correctness review involves in
both this setting and also those now infrequent situations where correctness will
be the standard of review on applications for judicial review.

A word of warning: when it comes to an examination, if selecting the standard

of review arises on the facts, you do need to consider the applicable approach,
as formulated in Vavilov and Bell Canada. The contextual, four-factor standard of
review analysis, as refined in Dunsmuir and its progeny, is no longer good law
and will not serve as the basis of an acceptable response. On the exam, no
marks will be awarded for an answer relying on this now-superseded case law.
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CHALLENGING ADMINISTRATIVE DECISIONS

12. Venue and Basic Procedure for Judicial Review CB 809-930

Now that you understand the law, it is time to understand how one goes about
challenging an administrative decision.

In some cases, there may be what is known as a “statutory right of appeal” or

“administrative appeal” – there may be a statute out there (often the enabling
statute) that allows someone to appeal the decision of the decision-maker,
sometimes to a court and sometimes to another administrative decision-maker.
If there is such a statutory right to appeal, one generally must “exhaust” it before
turning to judicial review. The rules governing these statutory appeals will be
governed by the statute itself. As you have already seen in reading Vavilov,
correctness will normally be the appropriate standard for reviewing questions of
law on a statutory appeal. To what extent does this make pursuing a statutory
right of appeal more attractive than applying for judicial review?

Remember: Judicial review is different – do not confuse the two. Judicial review
is part of the inherent powers of superior courts to review the exercise of powers
by executive branch officials.

Today, this form of relief is generally codified or provided for in primary legislation
or Rules of Court. This section also concentrates on one of the issues associated
with judicial review: standing, or the question of who gets to bring a judicial
review application. It also deals with venue: which court one goes to.

13. Remedies CB 931-982

This last part looks at the relief that can be provided on judicial review and also
through separate and different legal proceedings. It focuses on: the sorts of
remedies available on judicial review; the fact that the award of remedies on
judicial review is discretionary and may be denied on some of the grounds
discussed in the materials; and, the fact that there are civil remedies that may
overlap with the sorts of errors that give rise to judicial review, but that these are
governed by their own rules and procedures. Among the issues that arise on
applications for judicial review is that of when a finding of reviewable error should
result in a setting aside and remission back to the decision-maker as opposed to
a mere setting aside. Often wrapped up in this is a consideration of the
circumstances in which a court should simply step into the shoes of the decision-
maker and determine the substantive issue rather than sending it back for further
consideration. Vavilov provides guidance.

13
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Online Resources

The majority of case law and legislative resources needed by NCA students are available on
CanLII, the free legal information resource funded by the Federation of Law Societies of Canada
(www.canlii.org). That includes all decisions of the Supreme Court of Canada, and all federal,
provincial, territorial and appellate courts.

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