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Lecture 5

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Political Science
Greg Flynn

ADMINISTRATIVE LAW AND NATURAL JUSTICE 1. SCOPE OF ADMINISTRATIVE LAW individuals in making decisions that could seem unfair and infringe on there liberty.wer to Therefore the court made the administrative law system to sort of balance out this great amount of power the state has Administrative Law: specialized area of law .. (definition in the textbook) Eg: Employment Insurance: who decides who makes decisions that deal with EI, the regulations set out are administered by administrative law. Administrative law is concerned with how programs are enacted and how decisions are made. It is in a sense giving authority to tribunals to make decisions that affect individuals to agency’s instead of elected officials as if it were with elected officials then there is a conflict of interest. a. Who makes decisions? - efficiency - volume - consistency - expertise Efficiency: means that having a tribunal is more efficient to deal with certain areas of decision making Consistency: you want consistent results, people are treated in the same fashionm all Expertise: Many of the decisions made by these tribunals involve highly specialized laws or issues that are out of the purview of elected officials. Empowering Statute: the statue that gives the tribunals their power and outlines the scope of it. Common Law: The tribunals must have developed on their behalf a set of principles that come out of common law. The administrative law is concerned with seeing that the tribunals are making the decisions as they are supposed to be exercised by law Public bodies: any agency that has power given to them by a statute. b. How decisions are made? - Administrative vs. Charter review - Procedural vs. Substantive Examinations that are made to see how existing decisions are made, are they fair and in accordance with the law Courts are given existing decisions that are already made to examine and see if it in accordance with law not new decisions for 4 reasons: Expertise of the tribunal, many of the tribunals operate in an informal context compared to a judicial hearing, if you give courts a brand new case to look at it they would be looking at things in a brand new manner, the third reason is one of efficiency, courts simply cannot review all of these decisions by the tribunal. They look at around 5 trials a year, there are simply not enough resources in our judicial system to review every decision. “ Quick look” to see if it is in accordance with law if not the courts send it back to the tribunal to try again. The fourth reason has to do with the idea of democracy. Democracy: the way the courts review judicial review is a way to see if the tribunal acts according to legislature. The limits imposed by this legislature are being complied with. 2. NATURAL JUSTICE/PROCEDURAL The courts designed a set of general principles in the face of these decisions made by government they were concerned about an imbalance of power, they created a concept of the rules of natural justice, they are natural in the sense that they are awarded to every person as a basic right and exist whether they have been provided for by the constitution or the statutes. a. Natural Justice vs. Fundamental Justice The differences stems from the idea that natural rights exists because you are a person, a sense of human rights that have a grounding in the law where as the forms of fundamental are inherently tied to the state. Non Canadians are also protected by the rules of natural justice in the Canadian system even though they are not Canadians. Two rules that apply in natural justice: audi alterum partum rule and rule of bias Any decision made under the context of power is captured by the principles of natural justice. It has to be significant impairment of someone’s rights but where do you draw the line? The answer is that there is not hard or fast line there is a sliding scale that depends on the circumstances. The general presumption is that these rules apply in all circumstances even in the absence of a statute being silent on the rules of natural justice. There is a possibility of exclusion if the statute specifically states that it excludes the rights of natural justice. b. Scope of Natural Justice - when does it apply? - where does it apply? - exclusion/inclusion? 3. CONTEXTUAL FACTORS The Sliding Scale of protection depends on the circumstances of each case, how do you go about what level of protection an individual is entitled to. a. Baker v. Canada: based on the notes from the investigator the supreme court stated that they were biased and there were no way she could go around this bias therefore they let her stay on humanitarian and compassion grounds. Courts need to look at these 5 factors to see how the procedural process will determine how much protection an individual requires: i. Resemblance to Judicial Process: how closely what the tribunal does looks like a courtroom setting ii. Wording of Statute: If the wording of the statute sets out any procedural settings iii. Importance of Decision: How the individual is affected by it iv. Expectations of Individual: procedural expectations when a person is countering a decision v. Decision Maker’s Procedural Choices: what are the agencies own procedural choices, did th
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