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LAWS-nov 2.docx

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LAWS 1000
Steve Tasson

LAWS – LECTURE NOTES – November 2, 2012  Administrative Law o has a law making capacity, creates law in the form of regulations o looks at decisions of administrative agencies and tribunals o referred to as “creatures of statute” o connected to parliament but not necessarily directly accountable in the same way o regulation agencies o create and enforce laws, they can police, and uphold/enforce their own rules o less informal = more flexible o conflict handled by administrative agencies outside of courts o examples of administrative law agencies: 1)Liquor Control, 2)Workers Compensation Board o its source of legitimacy is not very clear and is less formal o Info from slide:  Functions: investigation, rule-making, adjud. (due process & nat. justice), enforcement (proactive - contra courts (reactive)  •Merits: speed, informality, flex, expertise(tech?), and continuous surveillance of industry/ relation (specialized)  •Trouble: “regulatory capture” (e.g. oil spill in US), informality, inaccessible o Context example:  CRTC – broadcasting act set them to “serve the Canadian public”  functions: overseas mergers and accusations, issues licenses, encourages competitions in telecommunications, responsible for public information and consulting, public relations, regulating telecommunications  Power: how communications operate in Canada, appointed unelected officials  Grey area: not responsible exactly for internet  Example of issues:  Candice Molnar: commissioner of an industry she worked for 20 years – can she be objective when making decisions?  Bell-Astral deal: goal of astral was to merge to maintain balance in competition  Adjunction(example: courts, judges) vs. Legislation (example: administrative law) o courts  interests are in resolution and legal action  engaged in facts – legal facts only (particular)  reactive – can be long process  interested in justice  has a narrow sense of justice – individual cases o legislature  is not interested in individual case – interested in broader questions  problem solvers interested in processes  proactive and speedy  Problems with Judicial Lawmaking  enforces state value and interest at cost of individual at times  conservative tendency – should be neutral  law loses its legitimacy when it doesn’t engage in proper process and does not pass all such as parliament, charter etc. – ultimate source of legitimacy is “the people”  judges don’t necessarily make decisions that are “for” the people and can make ones that are “against” the people  Pg. 128 of our vago&nelson textbook (read this re: Bogart Quote)  problems with interpreting statutes:  misinterpretation – what happens when judges can’t understand what parliament intended if they are making decisions tied to this?  language can change over time – meanings can change due to context  when laws are drafted they don’t necessarily foresee all ends – indeterminacy  example: Canada patent legislation was written 100 years ago – still same context now? – demonstrates issue that judges have to look at the text of a statute and figure out what it means.  two approaches – internal & external aids o judges can go to an internal aid such as an interpretation guide  Rules of Statutory interpretation for judges (ON EXAM!!!!!!!!): o 1) the plain meaning rule(literal/strict) o 2)the golden rule o 3)the mischief rule aka the rule in Heydan case (case ref: Gorris v. Scot (1874) o 4)modern approach (particular to Canada – constitution as a living tree)  Key Cases relevant to this legislation interpretation rules: o “The Person’s Case”  the case referred to in 1930’s, are women classified as persons?  in order to be a senator qualified persons (literal
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