CML 2312 ADMINISTRATIVE LAW Forcese CML 2312 Administrative

CML 2312: ADMINISTRATIVE LAW Forcese CML 2312: Administrative Law (Forcese)

Control of Power: 4 Question Approach What relief can be granted? : Certiorari Scope of Remedy Effect of Remedy • in modern time, general, all -purpose remedy for any ground of JR • quashing of decision • issue of remitting for redetermination CML 2312: Administrative Law (Forcese) CONTROL OF THE EXERCISE OF DELEGATED POWER Review

Control of Power: 4 Question Approach What relief can be granted? : Prohibition Scope of Remedy Effect of Remedy • timing: available only where decision not yet made • prevents decisions not yet made • available to prevent wrongful assumption of jurisdiction CML 2312: Administrative Law (Forcese) CONTROL OF THE EXERCISE OF DELEGATED POWER Review

Control of Power: 4 Question Approach What relief can be granted? : Mandamus Scope of Remedy Effect of Remedy • 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 • compels delegate to perform public duties CML 2312: Administrative Law (Forcese) CONTROL OF THE EXERCISE OF DELEGATED POWER Review

Control of Power: 4 Question Approach What relief can be granted? : Habeas corpus Scope of Remedy Effect of Remedy • 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 • compels release of improperly detained person CML 2312: Administrative Law (Forcese) CONTROL OF THE EXERCISE OF DELEGATED POWER Review

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

Control of Power: 4 Question Approach What relief can be granted? : Declaration Scope of Remedy Effect of Remedy • court interprets provisions and declares true meaning • only on questions of law • not binding, but generally observed CML 2312: Administrative Law (Forcese) CONTROL OF THE EXERCISE OF DELEGATED POWER Review

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

Control of Power: 4 Question Approach What relief can be granted? : Discretion to decline remedies Issue Considerations 1. Failure to exhaust administrative remedies • 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) CML 2312: Administrative Law (Forcese) CONTROL OF THE EXERCISE OF DELEGATED POWER Review

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

Footnote discussion: Other remedies for abuses of power Issue Considerations Tort for abuse/misfeasance of power • 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 CML 2312: Administrative Law (Forcese) CONTROL OF THE EXERCISE OF DELEGATED POWER Review

REVIEW The Public Law Setting Accountability and the Administrative Law “Mantra”: Show me the Power! Power Diagram Key Events Constitution Act, 1867 Royal Prerogative The Most Important: Power delagated by statute 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. CML 2312: Administrative Law (Forcese)

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Delegated Power Exercise of Delegated Power 1. To whom is the power 1. Who exercises the control? delegated? 2. What procedure must be 2. What is the nature of the power followed in seeking to control the delegated? exercise of delegated power? 3. How is the power to be 3. On what grounds is control exercised? 4. What relief can be granted? Power Diagram The Steps 3. How is the power to be exercised? • Two sub-questions: 1. What is the procedure to be followed in the exercise of power? • Sources of these procedures: • Statute • Common law • Constitution CML 2312: Administrative Law (Forcese) REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Delegated Power Exercise of Delegated Power 1. To whom is the power 1. Who exercises the control? delegated? 2. What procedure must be 2. What is the nature of the power followed in seeking to control the delegated? exercise of delegated power? 3. How is the power to be 3. On what grounds is control exercised? 4. What relief can be granted? Power Diagram Flowchart: Procedural Review Federal Common Law Bill of Rights Ontario Charter SPPA CML 2312: Administrative Law (Forcese) Common Law REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Delegated Power Exercise of Delegated Power 1. To whom is the power 1. Who exercises the control? delegated? 2. What procedure must be 2. What is the nature of the power followed in seeking to control the delegated? exercise of delegated power? 3. How is the power to be 3. On what grounds is control exercised? 4. What relief can be granted? Flowchart: Procedural Review Federal Common Law Bill of Rights Ontario Charter SPPA Triggers: 3 -prong Leg. Exp. Exceptions: Leg. decisions CML 2312: Administrative Law (Forcese) Common Law REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Delegated Power Exercise of Delegated Power 1. To whom is the power 1. Who exercises the control? delegated? 2. What procedure must be 2. What is the nature of the power followed in seeking to control the delegated? exercise of delegated power? 3. How is the power to be 3. On what grounds is control exercised? 4. What relief can be granted? Flowchart: Procedural Review Federal Common Law Bill of Rights Ontario Charter SPPA Common Law Content: : Audi Right to be heard Nemo Right to unbiased delegate CML 2312: Administrative Law (Forcese) REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Delegated Power Exercise of Delegated Power 1. To whom is the power 1. Who exercises the control? delegated? 2. What procedure must be 2. What is the nature of the power followed in seeking to control the delegated? exercise of delegated power? 3. How is the power to be 3. On what grounds is control exercised? 4. What relief can be granted? Flowchart: Procedural Review Federal Common Law Bill of Rights Ontario Charter SPPA Trigger Section 7: deprivation of life, liberty or security of the person CML 2312: Administrative Law (Forcese) Common Law REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Delegated Power Exercise of Delegated Power 1. To whom is the power 1. Who exercises the control? delegated? 2. What procedure must be 2. What is the nature of the power followed in seeking to control the delegated? exercise of delegated power? 3. How is the power to be 3. On what grounds is control exercised? 4. What relief can be granted? Flowchart: Procedural Review Federal Common Law Bill of Rights Ontario Charter SPPA Content At minimum, fundamental justice means common law procedural guarantees CML 2312: Administrative Law (Forcese) Common Law REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Delegated Power Exercise of Delegated Power 1. To whom is the power 1. Who exercises the control? delegated? 2. What procedure must be 2. What is the nature of the power followed in seeking to control the delegated? exercise of delegated power? 3. How is the power to be 3. On what grounds is control exercised? 4. What relief can be granted? Flowchart: Procedural Review Federal Common Law Bill of Rights Ontario 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) REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Delegated Power Exercise of Delegated Power 1. To whom is the power 1. Who exercises the control? delegated? 2. What procedure must be 2. What is the nature of the power followed in seeking to control the delegated? exercise of delegated power? 3. How is the power to be 3. On what grounds is control exercised? 4. What relief can be granted? Flowchart: Procedural Review Federal Common Law Bill of Rights Ontario 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) REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Delegated Power Exercise of Delegated Power 1. To whom is the power 1. Who exercises the control? delegated? 2. What procedure must be 2. What is the nature of the power followed in seeking to control the delegated? exercise of delegated power? 3. How is the power to be 3. On what grounds is control exercised? 4. What relief can be granted? Flowchart: Procedural Review Federal Common Law Bill of Rights Ontario 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) REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Delegated Power Exercise of Delegated Power 1. To whom is the power 1. Who exercises the control? delegated? 2. What procedure must be 2. What is the nature of the power followed in seeking to control the delegated? exercise of delegated power? 3. How is the power to be 3. On what grounds is control exercised? 4. What relief can be granted? Power Diagram Flowchart: Procedural Review Federal Common Law Bill of Rights Ontario Charter SPPA Trigger all tribunals exercising statutory powers of decision required to hold a hearing CML 2312: Administrative Law (Forcese) Common Law REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 1. To whom is the power 2. What procedure must be delegated? followed in seeking to control the 2. What is the nature of the power exercise of delegated power? delegated? 3. On what grounds is control 3. How is the power to be exercised? 4. What relief can be granted? Power Diagram Flowchart: Review Process Control? Appeal Right of appeal must exist in statute. Statute will set out grounds, remedies, etc. REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 1. To whom is the power 2. What procedure must be delegated? followed in seeking to control the 2. What is the nature of the power exercise of delegated power? delegated? 3. On what grounds is control 3. How is the power to be exercised? 4. What relief can be granted? Power Diagram Flowchart: Review Process Control? No appeal Appeal to admin body exhausted/ no adequate alternative appeal Judicial Review REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 1. To whom is the power 2. What procedure must be delegated? followed in seeking to control the 2. What is the nature of the power exercise of delegated power? delegated? 3. On what grounds is control 3. How is the power to be exercised? 4. What relief can be granted? Power Diagram Flowchart: Review Process Control? Judicial Review Federal Ontario JRPA REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 1. To whom is the power 2. What procedure must be delegated? followed in seeking to control the 2. What is the nature of the power exercise of delegated power? delegated? 3. On what grounds is control 3. How is the power to be exercised? 4. What relief can be granted? Power Diagram Flowchart: Review Process Control? Judicial Review Federal FCA Ontario REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 1. To whom is the power 2. What procedure must be delegated? followed in seeking to control the 2. What is the nature of the power exercise of delegated power? delegated? 3. On what grounds is control 3. How is the power to be exercised? 4. What relief can be granted? Power Diagram Flowchart: Review Process Control? Judicial Review Ontario Federal (see FCA) Grounds Errors where no deference (procedural entitlements) Errors where deference REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 1. To whom is the power 2. What procedure must be delegated? followed in seeking to control the 2. What is the nature of the power exercise of delegated power? delegated? 3. On what grounds is control 3. How is the power to be exercised? 4. What relief can be granted? Power Diagram Flowchart: Review Process Grounds Errors where no deference (procedural entitlements) Errors of law Errors where deference Abuse of discretion Error of fact REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 1. To whom is the power 2. What procedure must be delegated? followed in seeking to control the 2. What is the nature of the power exercise of delegated power? delegated? 3. On what grounds is control 3. How is the power to be exercised? 4. What relief can be granted? Power Diagram Flowchart: Review Process Grounds Errors where no deference (procedural entitlements) Errors of law Errors where deference Abuse of discretion Standard of Review Analysis Error of fact REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 1. To whom is the power 2. What procedure must be delegated? followed in seeking to control the 2. What is the nature of the power exercise of delegated power? delegated? 3. On what grounds is control 3. How is the power to be exercised? 4. What relief can be granted? Power Diagram Flowchart: Review Process Control? Judicial Review Federal Ontario Common Law Prerogative Writs Ordinary remedies REVIEW The Seven Steps to Administrative Law Wisdom

The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 1. To whom is the power 2. What procedure must be delegated? followed in seeking to control the 2. What is the nature of the power exercise of delegated power? delegated? 3. On what grounds is control 3. How is the power to be exercised? 4. What relief can be granted? Power Diagram Flowchart: Review Process Control? Judicial Review Federal FCA, s. 18 gives power over most common law remedies; However, FCC practice generally to cite s. 18. 1(3) Ontario REVIEW The Seven Steps to Administrative Law Wisdom