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CML 2312: Administrative Law

CML 2312: Administrative Law . Forcese. Review. Control of Power: 4 Question Approach What relief can be granted?: Certiorari. Scope of Remedy. Effect of Remedy. quashing of decision issue of remitting for re-determination.

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CML 2312: Administrative Law

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  1. CML 2312: Administrative Law Forcese CML 2312: Administrative Law (Forcese)

  2. Review • Control of Power: 4 Question Approach • What relief can be granted?: Certiorari • Scope of Remedy • Effect of Remedy • quashing of decision • issue of remitting for re-determination • in modern time, general, all-purpose remedy for any ground of JR Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  3. Review • Control of Power: 4 Question Approach • What relief can be granted?: Prohibition • Scope of Remedy • Effect of Remedy • prevents decisions not yet made • available to prevent wrongful assumption of jurisdiction • timing: available only where decision not yet made Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  4. Review • Control of Power: 4 Question Approach • What relief can be granted?: Mandamus • Scope of Remedy • Effect of Remedy • compels delegate to perform public duties • four basic requirements: • 1. the function to be performed by the delegate obligatory • 2. the applicant for the relief is owed the duty individually • 3. the performance of the duty is due • 4. the delegate has refused a demand that it perform the duty Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  5. Review • Control of Power: 4 Question Approach • What relief can be granted?: Habeas corpus • Scope of Remedy • Effect of Remedy • compels release of improperly detained person • brought on behalf of detained person • in Ontario, Habeas Corpus Act (for civil matters) • provides for a prayer for certiorari in aid of habeas corpus Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  6. Review • Control of Power: 4 Question Approach • What relief can be granted?: Quo Warranto • Scope of Remedy • Effect of Remedy • person challenged successfully does not have powers of the public office • allows applicant to challenge person’s entitlement to public office • must be purported exercise of allegedly usurped office Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  7. Review • Control of Power: 4 Question Approach • What relief can be granted?: Declaration • Scope of Remedy • Effect of Remedy • not binding, but generally observed • court interprets provisions and declares true meaning • only on questions of law Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  8. Review • Control of Power: 4 Question Approach • What relief can be granted?: Injunction • Scope of Remedy • Effect of Remedy • effect varies according to type • 1. Classified by effect: • preventive injunctions • mandatory injunctions • 2. Classified by duration • interlocutory injunctions • 3 prong test in RJR: • Serious question • Irreparable harm • Balance of Convenience • permanent injunctions Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  9. Review • Control of Power: 4 Question Approach • What relief can be granted?: Discretion to decline remedies • Issue • Considerations • remedy may be declined where administrative remedy is “adequate” • Issue of adequacy: may be measured with an eye to, e.g., “the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body” (Matsqui, SCC) • 1. Failure to exhaust administrative remedies Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  10. Review • Control of Power: 4 Question Approach • What relief can be granted?: Discretion to decline remedies • Issue • Considerations • Courts concerned about fragmentation • Usually only intervene preemptively in extraordinary circumstances • See, e.g., considerations weighed in Lorenz (FCA) • 2. Prematurity Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  11. Review • Control of Power: 4 Question Approach • What relief can be granted?: Discretion to decline remedies • Issue • Considerations • 3. Mootness • 4. Minor error • 5. No practical effect • 6. Timeliness of judicial review • 7. Applicant is bad Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  12. Review • Footnote discussion: Other remedies for abuses of power • Issue • Considerations • Black v. Canada • Odhavji Estate v. Woodhouse • misfeasance in public office (this abuse of power), is an intentional tort distinguished by (1) deliberate, unlawful conduct in the exercise of public functions; and (2) awareness that the conduct is unlawful and likely to injure the plaintiff • Tort for abuse/misfeasance of power Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  13. The Public Law Setting • Power Diagram • Key Events • . • Subdividing the Executive’s Slice of the Power Diagram: • The answer to “show me the power” must be one of three different sorts of power • Otherwise, the official is acting “outside of their jurisdiction”, or ultra vires. Review Accountability and the Administrative Law “Mantra”: Show me the Power! Power Diagram Constitution Act, 1867 Royal Prerogative The Most Important: Power delagated by statute CML 2312: Administrative Law (Forcese)

  14. The Seven Steps to Administrative Law Wisdom • Power Diagram • The Steps • . • 3. How is the power to be exercised? • Two sub-questions: • What is the procedure to be followed in the exercise of power? • Sources of these procedures: • Statute • Common law • Constitution Review • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? Power Diagram CML 2312: Administrative Law (Forcese)

  15. The Seven Steps to Administrative Law Wisdom • Power Diagram • . Review • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? Flowchart: Procedural Review Federal Ontario Common Law Bill of Rights Charter SPPA Common Law CML 2312: Administrative Law (Forcese)

  16. The Seven Steps to Administrative Law Wisdom • . Review • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? Flowchart: Procedural Review Federal Ontario Common Law Bill of Rights Charter SPPA Common Law : Triggers 3-prong Leg. Exp. Exceptions: Leg. decisions CML 2312: Administrative Law (Forcese)

  17. The Seven Steps to Administrative Law Wisdom • . Review • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? Flowchart: Procedural Review Federal Ontario Common Law Bill of Rights Charter SPPA Common Law : Content: Audi Nemo Right to be heard Right to unbiased delegate CML 2312: Administrative Law (Forcese)

  18. The Seven Steps to Administrative Law Wisdom • . Review • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? Flowchart: Procedural Review Federal Ontario Common Law Bill of Rights Charter SPPA Common Law Trigger Section 7: deprivation of life, liberty or security of the person CML 2312: Administrative Law (Forcese)

  19. The Seven Steps to Administrative Law Wisdom • . Review • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? Flowchart: Procedural Review Federal Ontario Common Law Bill of Rights Charter SPPA Common Law Content At minimum, fundamental justice means common law procedural guarantees CML 2312: Administrative Law (Forcese)

  20. The Seven Steps to Administrative Law Wisdom • . Review • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? Flowchart: Procedural Review Federal Ontario Common Law Bill of Rights Charter SPPA Common Law : Triggers 1(a): deprivation of life, liberty, security of the person or enjoyment of property 2(e): determination of rights and obligations CML 2312: Administrative Law (Forcese)

  21. The Seven Steps to Administrative Law Wisdom • . Review • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? Flowchart: Procedural Review Federal Ontario Common Law Bill of Rights Charter SPPA Common Law : Content 1(a): “due process” 2(e): fair hearing in accordance with principles of fundamental justice CML 2312: Administrative Law (Forcese)

  22. The Seven Steps to Administrative Law Wisdom • . Review • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? Flowchart: Procedural Review Federal Ontario Common Law Bill of Rights Charter SPPA Common Law : Content 1(a): “due process” 2(e): fair hearing in accordance with principles of fundamental justice CML 2312: Administrative Law (Forcese)

  23. The Seven Steps to Administrative Law Wisdom • Power Diagram Review • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? Flowchart: Procedural Review Federal Ontario Common Law Bill of Rights Charter SPPA Common Law Trigger all tribunals exercising statutory powers of decision required to hold a hearing CML 2312: Administrative Law (Forcese)

  24. The Seven Steps to Administrative Law Wisdom • Power Diagram Review • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? Flowchart: Review Process Control? Appeal Right of appeal must exist in statute. Statute will set out grounds, remedies, etc.

  25. The Seven Steps to Administrative Law Wisdom • Power Diagram Review • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? Flowchart: Review Process Control? No appeal Appeal Judicial Review Appeal to admin body exhausted/ no adequate alternative appeal

  26. The Seven Steps to Administrative Law Wisdom • Power Diagram Review • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? Flowchart: Review Process Control? Judicial Review Federal Ontario JRPA

  27. The Seven Steps to Administrative Law Wisdom • Power Diagram Review • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? Flowchart: Review Process Control? Judicial Review Federal Ontario FCA

  28. The Seven Steps to Administrative Law Wisdom • Power Diagram Review • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? Flowchart: Review Process Control? Judicial Review Federal (see FCA) Ontario Grounds Errors where no deference (procedural entitlements) Errors where deference

  29. The Seven Steps to Administrative Law Wisdom • Power Diagram Review • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? Flowchart: Review Process Grounds Errors where no deference (procedural entitlements) Errors where deference Errors of law Error of fact Abuse of discretion

  30. The Seven Steps to Administrative Law Wisdom • Power Diagram Review • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? Flowchart: Review Process Grounds Errors where no deference (procedural entitlements) Errors where deference Errors of law Error of fact Abuse of discretion Standard of Review Analysis

  31. The Seven Steps to Administrative Law Wisdom • Power Diagram Review • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? Flowchart: Review Process Control? Judicial Review Federal Ontario Common Law Prerogative Writs Ordinary remedies

  32. The Seven Steps to Administrative Law Wisdom • Power Diagram Review • The 4 Question Approach to the Control of the Exercise of Delegated Power • 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? • The 3 Question Approach to the Exercise of Delegated Power • 1. To whom is the power delegated? • 2. What is the nature of the power delegated? • 3. How is the power to be exercised? Flowchart: Review Process Control? Judicial Review Federal Ontario FCA, s.18 gives power over most common law remedies; However, FCC practice generally to cite s.18.1(3)

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