ADMINISTRATIVE LAW AND
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: means that having a tribunal is more efficient to deal with certain areas of
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
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