Administrative Law May 20, 2014

1. Administrative LawMay 20, 2014 Ian Greene

2. Origins of Study of Administrative Law in Canada • Principles of administrative law develop in every country as the “administrative state” expands. Canada’s experience provides one example. • Administrators and judges in each state tend to look at experience in other states and adopt “best practices.” Canada and Palestine have something in common because of influence of British and French legal systems in both countries. • Administrative Law recognized as a field of law separate from constitutional law in UK in late 1950s; in Canada, 1960s and 1970s. • Delay in recognition partly because of legacy of A.V. Dicey (Introduction to the Law of the Constitution, 1885): • Described the unwritten constitution of the UK, especially constitutional conventions such as responsible government • Human rights protected by judges applying the rule of law, and the doctrines of interpretation, correctly; no need to a written Bill of Rights • In the English common law system, there is no need for separate administrative law courts; superior court judges supervise the whole administrative law process so that there is a uniform application of the law

3. The roots of administrative law • “administrative law concerns the ‘supervision’ … by courts of decision making made pursuant to statute or [executive] prerogative. Administrative boards and tribunals … and ministers and departmental officials, have no inherent power to make decisions that affect people’s lives but for the statute (or [executive] prerogative) that empowers them to do so. Thus the role of the court … is to make sure … that decision-makers do not step outside the boundaries of what they are legally empowered to do.” (Sossin) • This supervision by courts is referred to as “judicial review.”

4. A change in perspective • Huge increase in federal, provincial and municipal boards and tribunals beginning in early 1900s in Canada led to development of administrative law principles by courts • From 1940s to 1970s, appointments to administrative tribunals and independent agencies became increasing expert and professional. Superior court decisions overturning administrative rulings were sometimes based on lack of expertise. • Governments increasing inserted “privative clauses” into enabling legislation for tribunals and agencies to limit judicial review. • Superior court judges resented privative clauses and found ways to disregard them. • Young law professors were critical of the formalistic approach to administrative law, and wrote journal articles advocating acceptance of the administrative state by the legal profession. Deference to decisions of administrative tribunals with expert members was advocated except for • A clear violation of the tribinal’s legal powers • An unconstitutional decision • Decisions that are “patently unreasonable.”

5. The power of courts to review administrative decision making • 1. Original jurisdiction: a citizen may ask a court for relief on the grounds that administrative decision-makers have violated a private legal right related to a legal contract, or tort (wrongful private act that results in injury to person, property or reputation for which the injured party can seek compensation) • 2. If there is a statutory right of appeal. *Important – there is no right of appeal unless it is granted by a statute. For certainty that there is no appeal, legislation may include a “privative clause.” • 3. Court’s inherent judicial review jurisdiction. Superior courts in the UK had the inherent jurisdiction to judicially review administrative decisions in 1867. Canadian superior courts inherited this jurisdiction.

6. Canadian Court Structure • ____________________________ federal appointments | Supreme Court of Canada | and administration | 9 judges | |___________________________| _____________________| | ____|___ ____|____ ________________|________ federal | | | | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | Court | | courts of appeal | provincial | 27 js | | 47 js | | 128 judges | administration |______| |________| |_______________________ | | | _____________ |______ | federal | | | appointments | provincial superior | | provincial | trial courts | | administration | 829 judges | | |__________________ | | |___________________| | | | ___________ |__________ | | (All counts as of 2001) provincial | pure provincial and | appointments | territorial courts | & admin. | 984 judges | |______________________|

7. Prerogative Writs • The superior courts, or central royal courts, were created by William the Conqueror and his heirs after 1066. A nation-wide system of law was created to replace local laws with regard to the most important criminal and commercial issues. Disputes were settled under these new laws first by the king’s court, then by separate specialized courts (eg. King’s bench for serious criminal matters, Court of Common Pleas for private law matters). These royal courts inherited the King’s absolute power – inherent jurisdiction. • As the English legal system developed, in the 15th and 16th centuries they devised “prerogative writs” to provide remedies when it was determined there had been a breach of the common law: • Certiorari (quash or set aside a lower court decision, i.e. appeal) • Prohibition (to prohibit a public official from doing something illegal) • Mandamus (order a public official to perform his duty) • Habeas corpus (order the release of someone unlawfully confined) • Canadian superior courts inherited the power to issue prerogative writs, and used this power to “correct” decisions of public servants or administrative tribunals.

8. Advances in the 1970s • McRuer Commission on Human Rights (1968): huge impact – human rights commissions, provincial courts, and the Administrative Procedures Acts in 1970s. Ontario’s Judicial Review Procedure Act (1971) simplified judicial review, replacing the use of prerogative writs in most cases by statutory procedures for judicial review. • Because of the greater ease in requesting judicial review, changes to administrative law court structures: • Federal Court established in 1970 to handle federal administrative law appeals (taking jurisdiction from provincial superior courts to another superior court) • Ontario: The Division Court established to hear provincial administrative law appeals (panels of 3 judges selected from the Ontario Superior Court by the Chief Justice of the Superior Court)

9. Core functions of judicial review • Procedural fairness • Should a superior court review an administrative decision? If yes, did the administrator apply proper procedures? • Substantive review: did the administrator make an error so serious that the court should change the decision? • Remedies: if the administrator erred, should the court substitute its own judgment, or send the issue back to the tribunal for re-consideration?

10. Natural Justice & Fairness • Natural Justice • Nemojudex in suacausa (impartiality) • Audi alterampartem (hear both sides) • Functions of Admin. Agencies: • Legislative • Administrative • Executive • Judicial or quasi-jud. • Judicial review • Jurisdictional • Abuse of power • Natural justice • Jud or quasi-judicial bodies • Doctrine of fairness • Those aspects of natural justice that can logically be expected from a legislative, administrative or executive decision-making process

11. Procedural Fairness What procedures are required in a particular situation? -notice that a decision will be made? -has there been proper disclosure -adequate opportunity to make views known or participate? -is a full hearing required? -should there be an opportunity to give evidence and cross-examine? -should there be a right to counsel? -have oral or written reasons been given for the decision? What is critical is the enabling legislation. All administrators should study their enabling legislation closely.

12. Substantive Review • If a court decides that the threshold of procedural fairness has been crossed so that judicial review is necessary, there are 2 standards of review that could be used: • Correctness – did the administrator make a decision that the court would have made? • Reasonableness: the decision does not need to be “correct,” but within a range of reasonable alternatives. It cannot be “patently unreasonable.” • In determining which, the court looks at • Whether there is a privative clause • Purpose of the tribunal in the legislation • The nature of the question at issue • The expertise of the tribunal or administrator

13. Baker v. Canada (1999) • Mrs. Baker (from West Indies) had been in Canada illegally for a number of years • She had several children while in Canada • She was ordered deported, and a Canada Immigration official had denied her permission to remain in Canada on Humanitarian & Compassionate grounds. • The decision was appealed all the way to the Supreme Court of Canada • The Immigration official had written brief notes that indicated bias • The official had not taken into account the impact of deportation on Mrs. Baker’s children • Canada is a signatory the Convention on the Rights of the Child • Remedy: the Supreme Court quashed the decision, and ordered a different official to consider the H & C application without bias, and taking into account the Convention on the Rights of the Child • The new official who reviewed the application allowed Mrs. Baker to remain in Canada • The Canada Immigration Commission then contracted with the York Centre for Practical Ethics to organize a conference on ethical decision-making for its officers, and then a series of workshops on ethical case management for several years.