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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