ADMINISTRATIVE LAW
CONTENTS:
1. Introduction
1.1 Administrative Law: What is it and Why Does it Matter?
1.2 Executive Branch of Government in Canada
1.3 The Canadian Administrative State
2. Rule of Law
2.1 The Rule of Law: Arbitrariness & Legality
2.2 Politics and Law
2.3 Privative Clauses & Expertise
2.4 A Legal Constraint (Limit on Exercise of Statutory Discretion): Unwritten Principle
2.5 Deference as Respect
3. Delegating Administrative Power & Administrative Law Remedies
3.1 Delegating Administrative Power through Regulations and Rule-Making
3.2 Orders-in-Council
3.3 Introduction to Tribunal Remedies
3.4 Enforcement & Appeal of Tribunal Remedies
3.5 Introduction to Judicial Remedies
3.6 Judicial Review: Availability & Alternatives
3.7 Judicial Review: Private Law Remedies
4. Procedural Fairness
4.1 Sources & Development of Procedural Fairness
Classification: Protected A
, 4.2 Threshold Test & Trigger
4.3 Modern Test – Content
4.4 Limitations
4.5 Purpose of Procedural Fairness & Legitimate Expectations
4.6 Judicial Review and Breach of Duty Fairness
5. Access to Administrative Justice
5.1 Principle of access to justice/access to remedy
5.2 Resolution Tribunal
6. Bias and Independence
6.1 Bias and Independence - Sources and Definitions
6.2 Judicial v Administrative Independence
6.3 Rule Against Bias
6.4 Reasonable Apprehension of Bias Tests - Individual & Institutional
7. Standard of Review
7.1 A Short History of Standard of Review
7.2 Concept of Curial Deference
7.3 Pragmatic and Functional Analysis
7.4 Dunsmuir: New Approach & 2 Standards
7.5 The 2019 Trilogy & New Standard of Review Rules
7.6 Selection of the Standard of Review
7.7 Vavilov & the Application of the Reasonableness Standard
7.8 Remedial Discretion and the Vavilov Framework
7.9 Reasons in Substantive Review
7.10 Jurisprudential Questions
Classification: Protected A
, 1. INTRODUCTION
1.1 Administrative Law: What is it and Why Does it Matter?
The underlying theme of this course is the proper functioning of government. How can
government create and implement innovative public programs to serve important public ends
while also ensuring that the exercise of that public authority remains within the bounds of the
law. The proper functioning of the relationship between government and individuals flows
from the lawful exercise of public authority. This is where administrative law comes into play.
Administration law is body of law that relates the to statutes, related principles as well the
regulations and rules that constrain government functions. It governs the relationship between
different branches of the Canadian government and between the public and government
agencies.
Administrative law affects not only individuals, but a variety of groups and other legal entities
that are affected by government actions.
Administrative law also encompasses the relationship between government decision-makers,
deriving their powers from statutes, and the regular courts. Regular law courts perform a crucial
role in administrative law processes through ensuring that administrative decision-makers do not
exceed the limits of their statutory authority.
MAIN FUNCTIONS of Canadian administrative law under the following broad themes:
• Delegating Powers
Canada is a parliamentary system where in theory elected representatives make laws that govern
the various relationships in society.
Not surprisingly, the expansion of the Canadian state, along with most other modern nation-
states, has meant that elected representatives cannot make laws to govern every possible
relationship or situation that arises in modern society.
This is where delegation of law-making powers comes into play. The federal government, along
with provincial and territorial governments, delegate a large number of law-making,
administration and implementation powers to administrative agencies.
Classification: Protected A
, In Canada, administrative agencies reflect almost every area of government activity. Examples
include liquor licensing, telecommunications regulation, housing permits, inter-provincial trade,
along with various administrative tribunals that make decisions in these areas.
• Jurisdictional Issues & Remedies
Administrative tribunals (and administrative decision-makers) operate with a specific jurisdiction
and delegated powers usually defined by the statute that created them. This is known as the
enabling statute. Tribunals must not exceed the scope of the powers delegated to them by their
enabling statute or they risk exceeding their jurisdiction.
In such cases, regular courts may examine the tribunal’s enabling statute and other law, and may
reverse an administrative tribunal’s decision. This is known as judicial review and depending
on the clarity of the enabling statute’s language, issues of jurisdiction may not always be clear. In
such cases, courts can be cautious in interfering with tribunal decisions because of the perceived
expertise of their decision-makers.
• Procedural Fairness, Independence & Bias
Important grounds for judicial review of administrative actions that will be examined.
One of the most important issues — procedural fairness. Admini decisions must be fair. In
legal terms, they must follow the proper procedure in coming to a decision. In many instances,
an enabling statute may set out the basic procedures that consist of procedural fairness. Examples
— types of evidence a tribunal may receive, the amount of notice that must be given to a
participant in a hearing, the right to represent themselves in a hearing or the right to counsel, etc.
However, as with jurisdictional issues, in some cases an enabling statute does not clearly specify
decision-making procedures. In these instances, courts will apply common-law principles, such
as natural justice, in reviewing administrative decisions to establish that a decision was arrived
at fairly. Natural justice principles guide courts in reviewing decisions for independence and
impartiality.
Administrative decisions must be independently arrived at and free of bias.
• The Standard of Review
An individual’s ability to challenge admi decisions in a regular court depends on two factors.
First, there must be availability of an appeal or judicial review. Enabling statutes or other l/g may
provide for a route of appealing an admin decision. Where unclear, an appeal can be based on
the traditional availability of appeal to higher courts of law in Canada to review the decision of
Classification: Protected A
CONTENTS:
1. Introduction
1.1 Administrative Law: What is it and Why Does it Matter?
1.2 Executive Branch of Government in Canada
1.3 The Canadian Administrative State
2. Rule of Law
2.1 The Rule of Law: Arbitrariness & Legality
2.2 Politics and Law
2.3 Privative Clauses & Expertise
2.4 A Legal Constraint (Limit on Exercise of Statutory Discretion): Unwritten Principle
2.5 Deference as Respect
3. Delegating Administrative Power & Administrative Law Remedies
3.1 Delegating Administrative Power through Regulations and Rule-Making
3.2 Orders-in-Council
3.3 Introduction to Tribunal Remedies
3.4 Enforcement & Appeal of Tribunal Remedies
3.5 Introduction to Judicial Remedies
3.6 Judicial Review: Availability & Alternatives
3.7 Judicial Review: Private Law Remedies
4. Procedural Fairness
4.1 Sources & Development of Procedural Fairness
Classification: Protected A
, 4.2 Threshold Test & Trigger
4.3 Modern Test – Content
4.4 Limitations
4.5 Purpose of Procedural Fairness & Legitimate Expectations
4.6 Judicial Review and Breach of Duty Fairness
5. Access to Administrative Justice
5.1 Principle of access to justice/access to remedy
5.2 Resolution Tribunal
6. Bias and Independence
6.1 Bias and Independence - Sources and Definitions
6.2 Judicial v Administrative Independence
6.3 Rule Against Bias
6.4 Reasonable Apprehension of Bias Tests - Individual & Institutional
7. Standard of Review
7.1 A Short History of Standard of Review
7.2 Concept of Curial Deference
7.3 Pragmatic and Functional Analysis
7.4 Dunsmuir: New Approach & 2 Standards
7.5 The 2019 Trilogy & New Standard of Review Rules
7.6 Selection of the Standard of Review
7.7 Vavilov & the Application of the Reasonableness Standard
7.8 Remedial Discretion and the Vavilov Framework
7.9 Reasons in Substantive Review
7.10 Jurisprudential Questions
Classification: Protected A
, 1. INTRODUCTION
1.1 Administrative Law: What is it and Why Does it Matter?
The underlying theme of this course is the proper functioning of government. How can
government create and implement innovative public programs to serve important public ends
while also ensuring that the exercise of that public authority remains within the bounds of the
law. The proper functioning of the relationship between government and individuals flows
from the lawful exercise of public authority. This is where administrative law comes into play.
Administration law is body of law that relates the to statutes, related principles as well the
regulations and rules that constrain government functions. It governs the relationship between
different branches of the Canadian government and between the public and government
agencies.
Administrative law affects not only individuals, but a variety of groups and other legal entities
that are affected by government actions.
Administrative law also encompasses the relationship between government decision-makers,
deriving their powers from statutes, and the regular courts. Regular law courts perform a crucial
role in administrative law processes through ensuring that administrative decision-makers do not
exceed the limits of their statutory authority.
MAIN FUNCTIONS of Canadian administrative law under the following broad themes:
• Delegating Powers
Canada is a parliamentary system where in theory elected representatives make laws that govern
the various relationships in society.
Not surprisingly, the expansion of the Canadian state, along with most other modern nation-
states, has meant that elected representatives cannot make laws to govern every possible
relationship or situation that arises in modern society.
This is where delegation of law-making powers comes into play. The federal government, along
with provincial and territorial governments, delegate a large number of law-making,
administration and implementation powers to administrative agencies.
Classification: Protected A
, In Canada, administrative agencies reflect almost every area of government activity. Examples
include liquor licensing, telecommunications regulation, housing permits, inter-provincial trade,
along with various administrative tribunals that make decisions in these areas.
• Jurisdictional Issues & Remedies
Administrative tribunals (and administrative decision-makers) operate with a specific jurisdiction
and delegated powers usually defined by the statute that created them. This is known as the
enabling statute. Tribunals must not exceed the scope of the powers delegated to them by their
enabling statute or they risk exceeding their jurisdiction.
In such cases, regular courts may examine the tribunal’s enabling statute and other law, and may
reverse an administrative tribunal’s decision. This is known as judicial review and depending
on the clarity of the enabling statute’s language, issues of jurisdiction may not always be clear. In
such cases, courts can be cautious in interfering with tribunal decisions because of the perceived
expertise of their decision-makers.
• Procedural Fairness, Independence & Bias
Important grounds for judicial review of administrative actions that will be examined.
One of the most important issues — procedural fairness. Admini decisions must be fair. In
legal terms, they must follow the proper procedure in coming to a decision. In many instances,
an enabling statute may set out the basic procedures that consist of procedural fairness. Examples
— types of evidence a tribunal may receive, the amount of notice that must be given to a
participant in a hearing, the right to represent themselves in a hearing or the right to counsel, etc.
However, as with jurisdictional issues, in some cases an enabling statute does not clearly specify
decision-making procedures. In these instances, courts will apply common-law principles, such
as natural justice, in reviewing administrative decisions to establish that a decision was arrived
at fairly. Natural justice principles guide courts in reviewing decisions for independence and
impartiality.
Administrative decisions must be independently arrived at and free of bias.
• The Standard of Review
An individual’s ability to challenge admi decisions in a regular court depends on two factors.
First, there must be availability of an appeal or judicial review. Enabling statutes or other l/g may
provide for a route of appealing an admin decision. Where unclear, an appeal can be based on
the traditional availability of appeal to higher courts of law in Canada to review the decision of
Classification: Protected A
