CML 2312: Administrative Law

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

2. Defining Administrative Law • Study and analysis of the administrative process generally, and the exercise of power by public officials and the control thereof exercised by the courts, the administration itself and the legislature. • -- Former Edition of the Common Law Course Book • Elements of Definition • Keywords Power Public official Control Setting the Stage CML 2312: Administrative Law (Forcese)

3. Defining Administrative Law • Law which relates to the organization, duties, and quasi-judicial and judicial powers of the executive, to proceedings before tribunals and to the making of subordinate legislation • -- Canadian Pocket Law Dictionary • Elements of Definition • Keywords Power Public official Control Law Tribunals Subordinate legislation Setting the Stage CML 2312: Administrative Law (Forcese)

4. Defining Administrative Law • Body of laws created by administrative agencies in the form of rules, regulations, orders & decisions to carry out regulatory powers & duties of such agencies. • -- Black’s Law Dictionary (US) • Elements of Definition • Keywords Power Public official Control Law Tribunals & administrative agencies Subordinate legislation Setting the Stage CML 2312: Administrative Law (Forcese)

5. Defining Administrative Law • Administrative law is the body of law that establishes or describes the legal parameters of powers that exist by virtue of statute or residual Royal Prerogative. In terms of the relation between administrative process and the regular courts, administrative law embodies the principles by which the courts supervise the functioning of persons and bodies that derive their powers from either statute or the Royal Prerogative. • -- Mullan (2001) • Elements of Definition • Keywords Power Public official Control Law Tribunals & administrative agencies Subordinate legislation Statute or royal prerogative Setting the Stage CML 2312: Administrative Law (Forcese)

6. Defining Administrative Law • Administrative law "deals with the legal limitations on the actions of government officials, and on the remedies which are available to anyone affected by a transgression of these limits." • -- Villers and Jones (1998) • Elements of Definition • Keywords Power Public official Control Law Tribunals & administrative agencies Subordinate legislation Statute or royal prerogative Remedies Setting the Stage CML 2312: Administrative Law (Forcese)

7. Defining Administrative Law • Administrative law "deals with the legal limitations on the actions of government officials, and on the remedies which are available to anyone affected by a transgression of these limits." • -- Villers and Jones (1998) • Elements of Definition • Unpack definition • “Legal limitations” • “Government officials” • “Remedy” • “Anyone affected by the transgression” Setting the Stage CML 2312: Administrative Law (Forcese)

8. Defining Administrative Law • Administrative law deals with the legal limitations on the actions of government officials. Specifically, it concerns itself with the proper exercise of delegated power by these government officials and the control of this power by the courts. In large part, administrative law is about the scope and nature of judicial review of decisions made by government officials. It also about the remedies that are available to parties affected by decisions made by government officials that do not conform to standards set for the proper exercise of power • -- Consolidated definition • Elements of Definition • Keywords Power Public official Control Law Tribunals & administrative agencies Subordinate legislation Statute or royal prerogative Remedies Setting the Stage CML 2312: Administrative Law (Forcese)

9. Defining Administrative Law • Administrative law deals with the legal limitations on the actions of government officials. Specifically, it concerns itself with the proper exercise of delegated power by these government officials and the control of this power by the courts. In large part, administrative law is about the scope and nature of judicial review of decisions made by government officials. It also about the remedies that are available to parties affected by decisions made by government officials that do not conform to standards set for the proper exercise of power • -- Consolidated definition • Key Actors • Administrative Law in Context • Teressa Olander • Ottawa Rivercleaner • Atomic Power Unlimited • Graham Smith, President, Canadian Nuclear Safety Commission • . Setting the Stage CML 2312: Administrative Law (Forcese)

10. Administrative Law “Mantra” • Show me the power! • Dog walking hupo • Scenarios • Scenario 1: citizen enforcement • Scenario 2: by-law enforcement • Scenario 3: by-law enforcement with attitude • . Setting the Stage CML 2312: Administrative Law (Forcese)

11. Administrative Law “Mantra” • Show me the power! • Roncarelli v. Duplessis • Application of the mantra • “...that an administration according to law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure.” • -- Justice Rand • . Setting the Stage CML 2312: Administrative Law (Forcese)

12. The Public Law Setting • Life the law is history not logic. • 1000 Years of History • Key Concepts • Parliamentary sovereignty & rule of law • Executive power • Delegation • Jurisdiction & ultra vires • . Setting the Stage CML 2312: Administrative Law (Forcese)

13. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • The Sphere of “de facto” power • . Setting the Stage CML 2312: Administrative Law (Forcese)

14. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Chronology of Events • The era of absolute sovereigns: an unlimited royal prerogative • . Setting the Stage CML 2312: Administrative Law (Forcese)

15. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • The era of absolute sovereigns • King John’s tax troubles and the Magna Carta • . Setting the Stage CML 2312: Administrative Law (Forcese)

16. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • The era of absolute sovereigns • King John’s tax troubles and the Magna Carta • The emergence of “Parliament”... • . Setting the Stage CML 2312: Administrative Law (Forcese)

17. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • The era of absolute sovereigns • King John’s tax troubles and the Magna Carta • The emergence of “Parliament”... • And monarchial resistance to it • . Setting the Stage CML 2312: Administrative Law (Forcese)

18. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • The era of absolute sovereigns • King John’s tax troubles and the Magna Carta • The emergence of “Parliament”... • And monarchial resistance to it • The Reformation and the expediency of Parliament • . Setting the Stage CML 2312: Administrative Law (Forcese)

19. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • The era of absolute sovereigns • King John’s tax troubles and the Magna Carta • The emergence of “Parliament”... • And monarchial resistance to it • The Reformation and the expediency of Parliament • Trouble with the Stuarts Pt I • . Setting the Stage CML 2312: Administrative Law (Forcese)

20. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • Trouble with the Stuarts Pt II: civil war, republics and restoration • . Setting the Stage CML 2312: Administrative Law (Forcese)

21. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • Trouble with the Stuarts Pt III: the Glorious Revolution and the Bill of Rights, 1689 • . Setting the Stage CML 2312: Administrative Law (Forcese)

22. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • Parliamentary sovereignty and a residual “royal prerogative” • . Setting the Stage CML 2312: Administrative Law (Forcese)

23. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • Remaining prerogative powers by 1867: • Appointment of a Prime Minister • 2. Appointment of Ministers • 3. Dismissal of a government • 4. Dissolution of Parliament • 5. The creation of peers or Lords • 6. Prerogative of mercy • 7. Grant of patronage and honours • 8. Conduct of foreign affairs, including declaration of war and signing of treaties • 9. Crown cannot be sued without its permission • . Setting the Stage CML 2312: Administrative Law (Forcese)

24. The Public Law Setting • The march towards parliamentary sovereignty • Power Diagram • Key Events • Eventually, that residual prerogative exercised on the advice of the PM or Cabinet • . Setting the Stage CML 2312: Administrative Law (Forcese)

25. The Public Law Setting • Responsible government • Power Diagram • Key Events • . • From “Privy Council” to Cabinet Setting the Stage CML 2312: Administrative Law (Forcese)

26. The Public Law Setting • Canada, Confederation and the British North American Act • Power Diagram • Key Events • . • From whence responsible government? Setting the Stage CML 2312: Administrative Law (Forcese)

27. The Public Law Setting • Power Diagram • Key Events • . • The impact of the 1867 Act on the Power Diagram • Separation of Powers • In practice, most of the separation of powers is accomplished by constitutional convention and not so much the written text of the Constitution Acts Setting the Stage • Canada, Confederation and the British North American Act: • The Separation of Powers CML 2312: Administrative Law (Forcese)

28. The Public Law Setting • Power Diagram • Key Events • . • “There is in Canada a separation of powers among the three branches of government -- the legislature, the executive and the judiciary. In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.” • -- Fraser v. Canada, SCC Setting the Stage • Canada, Confederation and the British North American Act: • The Separation of Powers Power Diagram CML 2312: Administrative Law (Forcese)

29. The Public Law Setting • Power Diagram • Key Events • . • The impact of the 1867 Act on the Power Diagram • Division of Powers Setting the Stage • Canada, Confederation and the British North American Act: • The Division of Powers CML 2312: Administrative Law (Forcese)

30. The Public Law Setting • Power Diagram • Key Events • . • The impact of the Charter of Rights and Freedoms Setting the Stage Canada and Constitutionalized Rights CML 2312: Administrative Law (Forcese)

31. The Public Law Setting • Power Diagram • Key Events • . • The impact of the Charter of Rights and Freedoms Setting the Stage Canada and Constitutionalized Rights CML 2312: Administrative Law (Forcese)

32. The Public Law Setting • Power Diagram • Key Events • . • Parliament “sovereign” within its piece of the power pie Setting the Stage Canada and Parliamentary Sovereignty CML 2312: Administrative Law (Forcese)

33. The Public Law Setting • Power Diagram • Key Events • . • Parliament may delegate powers to the executive, by statute Setting the Stage Parliamentary Sovereignty and the Delegation of Powers CML 2312: Administrative Law (Forcese)

34. The Public Law Setting • Power Diagram • Key Events • . • Parliament may delegate powers to the executive, by statute Setting the Stage Parliamentary Sovereignty and the Delegation of Powers CML 2312: Administrative Law (Forcese)

35. The Public Law Setting • Power Diagram • Key Events • . • ". . . The legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others. … When the people have said, we will submit to rules and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them.“ • -- John Locke Setting the Stage Delegation Proper? Power Diagram CML 2312: Administrative Law (Forcese)

36. The Public Law Setting • Power Diagram • Key Events • . • Constraint 1: Legislature must have the power in the first place Setting the Stage • Delegation Proper? • Constraints in Canadian Law Power Diagram Cannot transgress Charter Cannot transgress the division of powers CML 2312: Administrative Law (Forcese)

37. The Public Law Setting • Power Diagram • Key Events • . • Constraint 2: Parliament cannot delegate its powers to provincial legislatures and vice versa Setting the Stage • Delegation Proper? • Constraints in Canadian Law Power Diagram No “inter-delegation” between levels of legislature (Attorney-General of Nova Scotia v. Attorney-General of Canada (1951), SCC CML 2312: Administrative Law (Forcese)

38. The Public Law Setting • Power Diagram • Key Events • . • Constraint 2 Caveat: Parliament can delegate its powers to provincial executive officials and the provincial legislatures can delegate to federal executive officials Setting the Stage • Delegation Proper? • Constraints in Canadian Law Power Diagram “Inter-delegation” permitted between legislatures of one level of government to executive officials of another (P.E.I. Potato Marketing Board v. H.B. Willis Inc., 1952, SCC) CML 2312: Administrative Law (Forcese)

39. The Public Law Setting • Power Diagram • Key Events • . • Constraint 3: “No taxation without representation” Setting the Stage • Delegation Proper? • Constraints in Canadian Law Power Diagram Constitution Act, 1867: s. 53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons CML 2312: Administrative Law (Forcese)

40. The Public Law Setting • Power Diagram • Key Events • . • Constraint 4: Parliament cannot surrender its powers to the executive Setting the Stage • Delegation Proper? • Constraints in Canadian Law Power Diagram “Parliament cannot, indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the executive government. Such powers must necessarily be subject to determination at any time by Parliament…” -- Re Gray, 1918, SCC CML 2312: Administrative Law (Forcese)

41. The Public Law Setting • Power Diagram • Key Events • . • Constraint 5: Delegated powers must not be unconstitutionally vague, where Charter s.7 interests are in play Setting the Stage • Delegation Proper? • Constraints in Canadian Law Power Diagram Charter, s.7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. CML 2312: Administrative Law (Forcese)

42. The Public Law Setting • Power Diagram • Key Events • . • Example of broad powers to delegate: Power to delegate “legislative” power itself Setting the Stage The Enormous Capacity of Parliament to Delegate Powers to the Executive Power Diagram Statutes often delegate the authority to an executive body (e.g., the Governor-in-Council) to make regulations, otherwise known as ‘delegated legislation’ CML 2312: Administrative Law (Forcese)

43. The Public Law Setting • Power Diagram • Key Events • . • Example of “legislative” power form the Nuclear Safety and Control Act (NSCA): • 44. (1) The Commission may, with the approval of the Governor in Council, make regulations • (a) respecting the development, production and use of nuclear energy; • (b) respecting the mining, production, refinement, conversion, enrichment, processing, reprocessing, possession, import, export, use, packaging, transport, management, storage, disposal and abandonment of a nuclear substance; etc. Setting the Stage The Enormous Capacity of Parliament to Delegate Powers to the Executive Power Diagram CML 2312: Administrative Law (Forcese)

44. The Public Law Setting • Power Diagram • Key Events • . • Another example of broad powers to delegate: Power to delegate a “discretionary” decision-making power Setting the Stage The Enormous Capacity of Parliament to Delegate Powers to the Executive Power Diagram Discretion defined (per Lord Diplock):“The concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.” CML 2312: Administrative Law (Forcese)

45. The Public Law Setting • Power Diagram • Key Events • . • Examples of discretion from the Nuclear Safety and Control Act (NSCA): • 19.(1) The Governor in Council may, by order, issue to the Commission directives of general application on broad policy matters with respect to the objects of the Commission. Setting the Stage The Enormous Capacity of Parliament to Delegate Powers to the Executive Power Diagram CML 2312: Administrative Law (Forcese)

46. The Public Law Setting • Power Diagram • Key Events • . • 16. (1) The Commission may, notwithstanding any other Act of Parliament, appoint and employ such professional, scientific, technical or other officers or employees as it considers necessary for the purposes of this Act and may establish the terms and conditions of their employment and, in consultation with the Treasury Board, fix their remuneration. Setting the Stage The Enormous Capacity of Parliament to Delegate Powers to the Executive Power Diagram CML 2312: Administrative Law (Forcese)

47. The Public Law Setting • Power Diagram • Key Events • . • Why discretion? • “[The] delegation by governments to administrators and bureaucrats is necessary to ensure that the sheer volume of work which must be done by government is, in fact, able to be done. It is the recipients of these various delegated powers and authorities who perform most of the activities and make most of the decisions essential to the proper functioning of the government and the implementation of our laws.” • -- Wagner v. Williams, 1995, Man. • Q.B., affirmed, Man. C.A.: Setting the Stage The Enormous Capacity of Parliament to Delegate Powers to the Executive Power Diagram CML 2312: Administrative Law (Forcese)

48. The Public Law Setting • Power Diagram • Key Events • . • Why discretion? • "Minister, the traditional allocation of executive responsibilities has always been so determined as to liberate the ministerial incumbent [and Parliament] from the administrative minutiae by devolving the managerial functions to those whose experience and qualifications have better formed them for the performance of such humble offices, thereby releasing their political overlords for the more onerous duties and profound deliberations which are the inevitable concomitant of their exalted position." • -- Sir Humphrey Appleby, Yes Minister Setting the Stage The Enormous Capacity of Parliament to Delegate Powers to the Executive Power Diagram CML 2312: Administrative Law (Forcese)

49. 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. Setting the Stage 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)

50. The Public Law Setting • Power Diagram • Key Events • . • Legal authority for judicial review: • Not expressly set out in Constitution Act, 1867 • Flows from tradition of UK Royal Courts • Judicial review authority “read into” s.96 of the Constitution Act, 1867: • 96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province... Setting the Stage The Concept of Judicial Review: Courts Policing the Exercise of Power by the Executive Power Diagram CML 2312: Administrative Law (Forcese)