CML 2312: ADMINISTRATIVE LAW Forcese CML 2312: Administrative Law (Forcese)

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Control of Power: 4 Question Approach What relief can be granted?: Certiorari Scope of RemedyEffect of Remedy quashing of decision issue of remitting for re- determination CML 2312: Administrative Law (Forcese) in modern time, general, all- purpose remedy for any ground of JR

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Control of Power: 4 Question Approach What relief can be granted?: Prohibition Scope of RemedyEffect of Remedy prevents decisions not yet made available to prevent wrongful assumption of jurisdiction CML 2312: Administrative Law (Forcese) timing: available only where decision not yet made

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Control of Power: 4 Question Approach What relief can be granted?: Mandamus Scope of RemedyEffect of Remedy compels delegate to perform public duties CML 2312: Administrative Law (Forcese) four basic requirements: 1. the function to be performed by the delegate obligatory 2. the applicant for the relief is owed the duty individually 3. the performance of the duty is due 4. the delegate has refused a demand that it perform the duty

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Control of Power: 4 Question Approach What relief can be granted?: Habeas corpus Scope of RemedyEffect of Remedy compels release of improperly detained person CML 2312: Administrative Law (Forcese) brought on behalf of detained person in Ontario, Habeas Corpus Act (for civil matters) provides for a prayer for certiorari in aid of habeas corpus

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Control of Power: 4 Question Approach What relief can be granted?: Quo Warranto Scope of RemedyEffect of Remedy person challenged successfully does not have powers of the public office CML 2312: Administrative Law (Forcese) allows applicant to challenge person’s entitlement to public office must be purported exercise of allegedly usurped office

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Control of Power: 4 Question Approach What relief can be granted?: Declaration Scope of RemedyEffect of Remedy not binding, but generally observed CML 2312: Administrative Law (Forcese) court interprets provisions and declares true meaning only on questions of law

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Control of Power: 4 Question Approach What relief can be granted?: Injunction Scope of RemedyEffect of Remedy effect varies according to type CML 2312: Administrative Law (Forcese) 1. Classified by effect: preventive injunctions mandatory injunctions 2. Classified by duration interlocutory injunctions 3 prong test in RJR: 1.Serious question 2.Irreparable harm 3.Balance of Convenience permanent injunctions

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Control of Power: 4 Question Approach What relief can be granted?: Discretion to decline remedies IssueConsiderations remedy may be declined where administrative remedy is “adequate” Issue of adequacy: may be measured with an eye to, e.g., “the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body” (Matsqui, SCC) CML 2312: Administrative Law (Forcese) 1. Failure to exhaust administrative remedies

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Control of Power: 4 Question Approach What relief can be granted?: Discretion to decline remedies IssueConsiderations Courts concerned about fragmentation Usually only intervene preemptively in extraordinary circumstances See, e.g., considerations weighed in Lorenz (FCA) CML 2312: Administrative Law (Forcese) 2. Prematurity

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Control of Power: 4 Question Approach What relief can be granted?: Discretion to decline remedies IssueConsiderations CML 2312: Administrative Law (Forcese) 3. Mootness 4. Minor error 5. No practical effect 6. Timeliness of judicial review 7. Applicant is bad

C ONTROL OF THE E XERCISE OF D ELEGATED P OWER Review Footnote discussion: Other remedies for abuses of power IssueConsiderations Black v. Canada Odhavji Estate v. Woodhouse misfeasance in public office (this abuse of power), is an intentional tort distinguished by (1) deliberate, unlawful conduct in the exercise of public functions; and (2) awareness that the conduct is unlawful and likely to injure the plaintiff CML 2312: Administrative Law (Forcese) Tort for abuse/misfeasance of power

R EVIEW The Public Law Setting Power DiagramKey Events CML 2312: Administrative Law (Forcese). Subdividing the Executive’s Slice of the Power Diagram: The answer to “show me the power” must be one of three different sorts of power Otherwise, the official is acting “outside of their jurisdiction”, or ultra vires. Accountability and the Administrative Law “Mantra”: Show me the Power! Power Diagram Constitution Act, 1867 Royal Prerogative The Most Important: Power delagated by statute

R EVIEW The Seven Steps to Administrative Law Wisdom Power DiagramThe Steps CML 2312: Administrative Law (Forcese). 3. How is the power to be exercised? Two sub-questions: 1. What is the procedure to be followed in the exercise of power? Sources of these procedures: Statute Common law Constitution The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? Power Diagram The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted?

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram CML 2312: Administrative Law (Forcese). Flowchart: Procedural Review The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted? FederalOntario Common Law Bill of Rights CharterSPPA Common Law

R EVIEW The Seven Steps to Administrative Law Wisdom CML 2312: Administrative Law (Forcese). The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted? FederalOntario Common Law Bill of Rights CharterSPPA Common Law Triggers Leg. Exp.3-prong : Exceptions: Leg. decisions Flowchart: Procedural Review

R EVIEW The Seven Steps to Administrative Law Wisdom CML 2312: Administrative Law (Forcese). The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted? FederalOntario Common Law Bill of Rights CharterSPPA Common Law Content: NemoAudi : Right to be heardRight to unbiased delegate Flowchart: Procedural Review

R EVIEW The Seven Steps to Administrative Law Wisdom CML 2312: Administrative Law (Forcese). The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted? FederalOntario Common Law Bill of Rights CharterSPPA Common Law Trigger Section 7: deprivation of life, liberty or security of the person Flowchart: Procedural Review

R EVIEW The Seven Steps to Administrative Law Wisdom CML 2312: Administrative Law (Forcese). The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted? FederalOntario Common Law Bill of Rights CharterSPPA Common Law Content At minimum, fundamental justice means common law procedural guarantees Flowchart: Procedural Review

R EVIEW The Seven Steps to Administrative Law Wisdom CML 2312: Administrative Law (Forcese). The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted? FederalOntario Common Law Bill of Rights CharterSPPA Common Law Triggers 1(a): deprivation of life, liberty, security of the person or enjoyment of property : 2(e): determination of rights and obligations Flowchart: Procedural Review

R EVIEW The Seven Steps to Administrative Law Wisdom CML 2312: Administrative Law (Forcese). The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted? FederalOntario Common Law Bill of Rights CharterSPPA Common Law Content 1(a): “due process” : 2(e): fair hearing in accordance with principles of fundamental justice Flowchart: Procedural Review

R EVIEW The Seven Steps to Administrative Law Wisdom CML 2312: Administrative Law (Forcese). The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted? FederalOntario Common Law Bill of Rights CharterSPPA Common Law Content 1(a): “due process” : 2(e): fair hearing in accordance with principles of fundamental justice Flowchart: Procedural Review

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram CML 2312: Administrative Law (Forcese) Flowchart: Procedural Review The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted? FederalOntario Common Law Bill of Rights CharterSPPA Common Law Trigger all tribunals exercising statutory powers of decision required to hold a hearing

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? Flowchart: Review Process Control? Appeal Right of appeal must exist in statute. Statute will set out grounds, remedies, etc.

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? Flowchart: Review Process Control? Appeal No appeal Judicial Review Appeal to admin body exhausted/ no adequate alternative appeal

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? Flowchart: Review Process Control? Judicial Review FederalOntario JRPA

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? Flowchart: Review Process Control? Judicial Review FederalOntario FCA

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? Flowchart: Review Process Control? Judicial Review Federal (see FCA) Ontario Grounds Errors where no deference (procedural entitlements) Errors where deference

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? Flowchart: Review Process Errors where no deference (procedural entitlements) Errors where deference Errors of law Grounds Error of fact Abuse of discretion

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? Flowchart: Review Process Errors where no deference (procedural entitlements) Errors where deference Errors of law Grounds Error of fact Abuse of discretion Standard of Review Analysis

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? Flowchart: Review Process Control? Judicial Review FederalOntario Common Law Prerogative Writs Ordinary remedies

R EVIEW The Seven Steps to Administrative Law Wisdom Power Diagram The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? 2. What is the nature of the power delegated? 3. How is the power to be exercised? Flowchart: Review Process Control? Judicial Review FederalOntario FCA, s.18 gives power over most common law remedies; However, FCC practice generally to cite s.18.1(3)