PUBLIC LAW Fri. Apr. 4, 2008 Prof McLeod-Kilmurray

ADMINISTRATIVE LAW 1) enabling 1) enabling 2) oversight 2) oversight

Applicant/individual affected Applicant/individual affected Government decision-maker Government decision-maker General public General public

I.Exercising Delegated Power 1. WHO has the power ? 2. Power to do WHAT (nature of the power)? 3. HOW must the power be exercised (according to what rules)? II.Controlling the Exercise of Delegated Power 4. WHO exercises the control? 5. ABOUT WHAT is control exercised (on what grounds)? 6. HOW is control exercised? (what procedure(s) must be followed)? 7. What are the RIGHTS of those affected by the exercise of these powers? What RESULT can be obtained?

Rule of Law and Separation of Powers Legislative Branch Legislative Branch Executive Branch Executive Branch Judicial oversight Judicial oversight

Grounds for challenging government action by JR PROCEDURAL grounds PROCEDURAL grounds SUBSTANTIVE review SUBSTANTIVE review

STRONG Privative Clause Ontario Labour Relations Act, 1995 Jurisdiction 114. (1)114. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes 114. (1) Board’s orders not subject to review No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings. 116.

WEAK Privative Clause Veterans Review and Appeal Board Act Decision of majority 31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.

PRAGMATIC and FUNCTIONAL TEST (old test) 3 standards of review: the Spectrum 3 standards of review: the Spectrum INCREASING deference ----> *_________________*__________________* correctnessreasonableness patent simpliciterunreasonableness

Pragmatic and Functional test FACTORS: 1) privative clause? 2) expertise 3) purpose of Act and this provision 4) nature of problem – Q of fact, law or mixed?

Dunsmuir: “Standard of Review Analysis” FACTORS: FACTORS: 1) Presence or absence of a privative clause 2) Purpose of the tribunal as determined by interpretation of the enabling legislation 3) The nature of the question at issue 4) The expertise of the tribunal

CORRECTNESS standard “constitutional question regarding the division of powers between Parliament and the provinces” (para 58) “constitutional question regarding the division of powers between Parliament and the provinces” (para 58) a “TRUE question of jurisdiction or vires” – (para 59) ‘Jurisdiction’ is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry” a “TRUE question of jurisdiction or vires” – (para 59) ‘Jurisdiction’ is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry” a “question of GENERAL LAW ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” – “such questions require uniform and consistent answers” (parag 60) a “question of GENERAL LAW ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” – “such questions require uniform and consistent answers” (parag 60) a question “regarding the jurisdictional lines between two or more competing specialized tribunals” (parag 61) a question “regarding the jurisdictional lines between two or more competing specialized tribunals” (parag 61)

PROCEDURAL FAIRNESS 1) Audi alteram partem Right to know the case against you Right to know the case against you Right to be heard Right to be heard Can include: Can include: Right to notice Right to notice Right to a hearing Right to a hearing Right to counsel Right to counsel Right to reasons Right to reasons 2) Nemo Judex right to be judged by an impartial arbiter (bias, etc) right to be judged by an impartial arbiter (bias, etc)

Pembina Institute for Appropriate Development v Canada (A.G.) 2008 FC 302 Environmental Assessment Act Environmental Assessment Act Expert panel appointed to do environmental assessment of proposed tar sands project in Alberta Expert panel appointed to do environmental assessment of proposed tar sands project in Alberta Pembina argues they ERRED in making the recommendation that the project be approved because, WITH mitigation measures in place, Panel believed project not likely to cause significant adverse environmental effects Pembina argues they ERRED in making the recommendation that the project be approved because, WITH mitigation measures in place, Panel believed project not likely to cause significant adverse environmental effects want recommendations of the Panel QUASHED and sent back to be done again want recommendations of the Panel QUASHED and sent back to be done again

“all parties agree that to the extent that the issues involved the interpretation of the Canadian Environmental Assessment Act, they are reviewable on a standard of correctness. However, issues relating to weighing the significance of the evidence and conclusions drawn from that evidence including the significance of an environmental effect are reviewed on the standard of reasonableness simpliciter.” “all parties agree that to the extent that the issues involved the interpretation of the Canadian Environmental Assessment Act, they are reviewable on a standard of correctness. However, issues relating to weighing the significance of the evidence and conclusions drawn from that evidence including the significance of an environmental effect are reviewed on the standard of reasonableness simpliciter.”

“Whether or not the Panel has provided a rationale for its conclusions and recommendations is a question of law, reviewable on a standard of correctness.” “Whether or not the Panel has provided a rationale for its conclusions and recommendations is a question of law, reviewable on a standard of correctness.”

“I am fully aware of the level of expertise possessed by the Panel. The record shows that they had ample material before them relating to the issue of greenhouse gas emissions and climate change, and thus any articulated conclusions drawn from the evidence should be accorded a high measure of deference. HOWEVER, THIS DEFERENCE TO EXPERTISE IS ONLY TRIGGERED WGHEN THOSE CONCLUSIONS ARE ARTICULATED.” “I am fully aware of the level of expertise possessed by the Panel. The record shows that they had ample material before them relating to the issue of greenhouse gas emissions and climate change, and thus any articulated conclusions drawn from the evidence should be accorded a high measure of deference. HOWEVER, THIS DEFERENCE TO EXPERTISE IS ONLY TRIGGERED WGHEN THOSE CONCLUSIONS ARE ARTICULATED.”

“The evidence shows that intensity-based targets place limits on the amount of greenhouse gas emissions per barrel of bitumen produced. The absolute amount of greenhouse gas pollution from oil sands development will continue to rise under intensity-based targets because of the planned increase in total production…The Panel dismissed as insignificant the greenhouse gas emissions WITHOUT ANY RATIONALE…Without this vital link, the clear and cogent articulation of the reasons behind the Panel’s conclusion, the deference accorded to its expertise is not triggered.” “The evidence shows that intensity-based targets place limits on the amount of greenhouse gas emissions per barrel of bitumen produced. The absolute amount of greenhouse gas pollution from oil sands development will continue to rise under intensity-based targets because of the planned increase in total production…The Panel dismissed as insignificant the greenhouse gas emissions WITHOUT ANY RATIONALE…Without this vital link, the clear and cogent articulation of the reasons behind the Panel’s conclusion, the deference accorded to its expertise is not triggered.”