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Week of October 17, 3NN6

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Political Science
Greg Flynn

Started on: 10/17/2013 11:30:00 AM Last saved on: 11/10/2013 5:37:00 PM C LASS N OTES FOR : 3NN6 P UBLIC L AW McMaster University, Fall 2013 TH O CTOBER 17 , 2013 A DMINISTRATIVE L AW AND NATURAL J USTICE - Judicially developed law - Stems on the idea of liberty - State has a large amount of power o Power can be bared against individuals in ways that can be unfair or arbitrary; - Procedural and Substantive side o Administration: defined as the specified area of law that deals with decisions made by those that „administer‟ „enact‟ and put in place the laws and policies passed by the legislative branch of government. o Legislature tells the executive what the laws and policies  Cabinet/executive are responsible for putting these laws into place o Example; Employment Insurance Program  Who decides who gets insurance? Who determines whether someone is unemployed or not? Who tells whether an individual has been pursuing training? o Example; Motor Vehicle Licenses  Motor Vehicle Act: Must have a driver‟s license  Regulations/Tests/Etc. Who decides whether you pass the test or not? o Procedural – Sliding scale of protections 1. Scope of Administrative Law a. Who makes decisions? [Effort to make decision making away from elected officials] To extend this to independent body tribunals, who tend to be very specialized and tend to act in a quasi-judicial manner; who do not hold like hearings. Are responsible for interpreting what the legislation means. How do we determine whether these decisions are being made fairly? Why would we give it to people who sit independent from government, and who are not elected?  i. Efficiency 1. A large number of decisions are made on a daily basis that fall within administrative law; groupings of all of these into a single place that fall into a criteria ii. Volume 1. There are too many decisions made from an administrative law context, for the elective officials to make them all. iii. Consistency 1. You want to have consistent results; that two people who have similar circumstances are treated consistent iv. Expertise 1. Many of the decisions made by tribunals, involve specialized policies area and law; outside of the purview of judges, and politics. 1 Started on: 10/17/2013 11:30:00 AM Last saved on: 11/10/2013 5:37:00 PM a. In accordance with the law; b. Common law c. Rule of Law 2. In cases the charter of rights and freedoms will apply; but this is a non-constitutional adjudication whether a public body is acting in accordance or not. b. How decisions are made? i. Administrative VS Charter Review ii. Procedural VS. Substantive 1. Procedural – How the decisions are made; 2. Substance – In terms of whether the decision is fair in the context on which it‟s made and in accordance with the law. a. What should be realized, this is not a full reconsideration of a decision, it‟s not a brand new case. 3. Why would we not examine it when it‟s fresh on the case? a. Expertise of the tribunal; b. Many tribunals operate in an INFORMAL context in comparison to a judicial hearing; c. Efficiency in a sense; courts can‟t review all of the decisions of these tribunals; There is not enough resources in order to be able to review the decisions made by the tribunal; d. Democracy; that the way the courts view judicial review; give meaning to the democratic public; if it‟s complied with the law; 2. NATURAL JUSTICE/PROCEDURE Overtime courts developed procedures to protect the rights. Concerned about the potential imbalance of powers between the state and society.  Natural in a sense that is ported to every person as a basic right  Exist whether or not the constitution or statues have provided them. a. Natural Justice vs. Fundamental Justice i. Natural rights exist, is because you are a human, an individual. 1. Apply regardless of citizenship 2. “Non-Canadians” are entitled to the protection of the state; even if they‟re not Canadian. 3. 2 RULES a. AUDI ALTERUM PARTUM b. BIAS ii. Fundamental Justice is more tied to the state and system of government. 1. Fundamental Justice – could be restricted to citizenship b. Scope of Natural Justice i. When does it apply? 1. Applies to all public decision making authority procedural 2. Covers decisions of private entities; church; decisions are covered under natural justice; whether the decisions of the body in question will affect the rights. 2 Started on: 10/17/2013 11:30:00 AM Last saved on: 11/10/2013 5:37:00 PM a. There has to be significant impairment; trivial, because what might be significant to someone might not be to another; b. Sliding scale of protection that depends upon the circumstances; ii. Where does it apply? 1. Rules of natural justice apply in all circumstances; 2. Even in a circumstance where a statue might be silent; it‟s generally held to be included in it. 3. “Courts empowering the democratic will” iii. Exclusion/inclusion? 1. In particular where a statue states that it CANNOT review; is the legislation constitutionally valid? iv. Sliding Scale of Protection; 1. Depends upon the circumstances of each case; how do you go about deciding what level of protection an individual is entitled to? 3. CONTEXTUAL FACTORS (How much protection is an individual entitled to) a. Baker v. Canada (Jamaican: exceeded her visitor’s visa for 11 years, 4 children in Canada; 4 children in Jamaica – has been on Welfare for 8 years)  Demonstrated bias;  The Supreme Court allowed her to stay in Canada because of the notes that were given by the Immigration Review Board;  Process about determining the extent that an individual should be entitled to from a procedural basis;  Factors that a tribunal had to review in order to determine how much protection she should get i. Resemblance to Judicial Process 1. How closely what the tribunal does looks like a court room setting ii. Wording of Statute 1. Whether it sets out any procedural protections iii. Importance of Decision 1. Importance of the decision to the individual that is affected by it iv. Expectations of Individual 1. Procedural expectations of the person challenging the decision; what did they expect to get? v. Decision Maker‟s Procedural Choices (agencies own procedural choices) 1. What are the agencies/tribunals/ own procedural choices? Have they provided previous processes? Where something was granted/denied? DEGREE OF PROTECTION LOW DEGREE HIGH DEGREE If it resembles higher degree If it‟s important
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