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36 views17 pages

Al4 03

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lostbilla66
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Administrative Law: Principles and Advocacy, 4th Edition

CHAPTER 3
The Foundations of Administrative Law

Emond
Copyright Montgomery
© 2020 Publications
Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 2

What Is Administrative Law?


Rules founded on 6 fundamental principles:
• Decision-makers must stay within jurisdiction

• Administrators to use reasonable discretion

• Administrators to follow “procedural fairness”

• Authority cannot be subdelegated

• Delegated legislation conforms to statute

• Courts can rectify violations by “judicial review”

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


2
Administrative Law: Principles and Advocacy, 4th Edition 3

What Is Administrative Law? (cont’d)


Why Did Administrative Law Develop?
• Rules were needed to scrutinize and regulate
administrative agencies’ activities
Who is Subject to Administrative Law?
• Any individual/body exercising power granted by
statute or regulation (government entities,
universities & hospitals, self-regulating
professions established by statute)
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
3
Administrative Law: Principles and Advocacy, 4th Edition 4

What Is Administrative Law? (cont’d)


Evolution of Administrative Law
• Fairness as a guiding principle

• Procedural fairness: Any person whose rights,


privileges, or interest may be affected is entitled
to notice of decision and reasons for it, and
opportunity to respond
• Natural justice: Procedural fairness rules that
tribunals must follow
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
4
Administrative Law: Principles and Advocacy, 4th Edition 5

Jurisdiction
Jurisdiction: Scope of authority/powers given to
government body or official by legislation or
common law; sources are statutes & common law
• Necessary implication: Unreasonable to draw
any other inference from facts
• Implied powers doctrine: Source of substantive
jurisdiction
• Inherent powers doctrine: Agency is master of
its own process
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
5
Administrative Law: Principles and Advocacy, 4th Edition 6

Jurisdiction (cont’d)
Rule of law has two important consequences:
• Powers/duties limited to those established by law

• Any agency with powers/duties under legislation


must follow legislated procedures in exercising
those powers/duties
Acting outside of jurisdiction known as ultra vires
• Declining jurisdiction: Failure to carry out
statutory function may breach procedural fairness
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
6
Administrative Law: Principles and Advocacy, 4th Edition 7

Discretion
• Discretion: Power to choose a course of action
from options available under the law
• Discretion must be exercised reasonably (avoid
viewing options too broadly/narrowly)
• There are four limits on decision-maker’s right to
choose among options
• Fettering discretion: When officials rule out
options that law requires them to consider
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
7
Administrative Law: Principles and Advocacy, 4th Edition 8

Discretion (cont’d)
Minimizing Uncertainty and Inconsistency Without
Fettering Discretion
• Policies and guidelines are advisable to promote
fairness and consistency, but should not be
binding rules
• Government officials may consult other staff
members; tribunal members are more
constrained
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
8
Administrative Law: Principles and Advocacy, 4th Edition 9

Subdelegation
• Generally, an official to whom legislature has
delegated decision-making power may not
delegate that power to someone else
• Subdelegation permitted in some circumstances
(when a statute states that a ministry “may” do
something)
• Subdelegation also permitted where specifically
authorized by statute
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
9
Administrative Law: Principles and Advocacy, 4th Edition 10

Subordinate Legislation
Two types of delegated legislation:
• Regulations made under statutes

• By-laws passed by municipalities

Validity of delegated legislation:


• Basic principle—Regulations and bylaws must be
consistent with objectives of their enabling
statutes and scope of regulatory powers set out in
those statutes
10Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 11

Subordinate Legislation (cont’d)


Procedural Fairness: Public body making
administrative, non-legislative decision affecting a
person’s interests more than general public has:
• Duty to notify person of intended decision and
reasons for it, and give them the right to be heard
(see Nicholson v Haldimand-Norfolk Regional
Police Commissioners)
• Obligation to provide impartial decision-maker

11Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 12

Subordinate Legislation (cont’d)


Duty of impartiality applies to all carrying out
decision-making in government:
• Decision-maker must approach decision with an
open mind (see Imperial Oil v Quebec Minister of
the Environment)
• Decision-maker must be independent

Institutional bias—Arises from characteristics of


an agency’s structure or functions
12Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 13

Subordinate Legislation (cont’d)


Sources of Procedural Fairness
• Common law

• Individual enabling statutes

• Statutes of general application to agencies or


tribunals
• Canadian Charter of Rights and Freedoms

• Section 35 of the Constitution Act, 1982

13Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 14

Subordinate Legislation (cont’d)

Statutes of General Application


• Ontario—Statutory Powers Procedure Act (SPPA)

• Alberta—Administrative Procedures and


Jurisdiction Act (APJA)
• Quebec—Administrative Justice Act (AJA)

• B.C.—Administrative Tribunals Act (ATA)

14Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 15

Judicial Review
• Judicial review: Superior courts have inherent
power to review alleged violations of fundamental
principles of administrative law and rectify as
necessary
• The right to judicial review is constitutional in
nature, meaning that it is available even when a
statute prohibits it

15Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 16

Judicial Review (cont’d)


Generally, courts hearing judicial review
applications can:
• Declare action taken by public official/agency to
be illegal
• Quash a decision made by official or agency

• Order official or agency to take any action


required by law

16Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 17

Judicial Review (cont’d)


• Forbid public official/agency taking illegal action

• Require an official or agency to follow fair


procedure
• Order an agency to free an illegally imprisoned
person

17Copyright © 2020 Emond Montgomery Publications. All rights reserved.

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