Guide To Judicial Review of Admin Decisions

PF

1.--> Does Legislation Provide any procedural rights?

2. Then, CL PF Threshold factors CONSIDER:

 is the decision legislative and general ? Yes: not likely to cross.
 affect rights, interests,property, privileges, liberties ? Yes: more likely to
cross.
 serious consequences ? Yes: more likely to cross
 prelimary vs final decision ? Final: more likely. Preliminary: not likely
 relationship btw individual and ADM ? Office at pleasure-type: more likely
(eg. no contract of employment or terms provide for summary/dismissal/no
protection)

3. Even if threshold not met -> were there any Legitimate Expectations?
(can only create procedual rights (not substantive) (ie order a hearing)

4. Then, Constitutional Threshold:

(Charter for provl/fedl ADM -OR- Bill of Rights for fedl ADM)

Charter: s7 (life liberty security affected by decision): PF requirement =

-->procedures must accord w/ fundamental justice
-->failure to do so must be justified under s1

Bill of R: s1(a) (life, liberty, security, or enjoyment of property affected by

decision): PF requirement =
-->due process of law
OR
s2(e) (decision determines rights and obligations): PF requirement =
-->entitled to a hearing in accordance with fundamental justice

5. Decision has Crossed CL/Consti Threshold,

Determine Content of PF in the circumstances (Baker Factors):

 nature of the decision and process followed making it – closer to judicial
process: more PF
 role of decision in stat scheme – internal appeals avail: less PF
 importance of decision to the individual – more importance: more PF
 legitimate expectations – did ADM make representations as to
procedure/outcome?
 choices of procedure made by agency – should be respected: less PF

**write these out**:

since the ___ threshold is crossed, [X] must have an opportunity to know the
issues and to make representations;
the deliberative process followed by the ADM must meet the duty of fairness or be
in keeping with prinicples of fundamental justice; and
the decision must be made by an unbiased, independent decision maker

but what that entails depends on the particular circumstances of the case (Knight)

6. Requirement for particular procdures : based on whether actually necessary to

allow affected party to make representations
-->If sufficient participation ensured in some other way : cant assert Procedure
sought -
no failure to meet PF duty

If sufficent participation not afforded,

Assesss what procedures may be relevant to the PF duty :
-Notice
-discovery/disclosure
-delay
-oral hearing
-right to counsel
-crossX
-official notice
-Those who hear must decide
-reasons / content of reasons
-impartiality / independence

7. Should the court rigorously review the decision?: Standard of Review

Usually correctness review applies where duty of PF has been breached.

Exceptions: choices and expertise of ADM re procedural matters calls for more
deference
(Re Paine and UofT)

+s7 breach may be justified under s1

8. Finding of Breach of CL PF or s7 (not justified under s1) --> decision quashed

some cases say this should only be done if outcome would have been different
w/o the breach (Hundal v Spt Motor Vehicles)
more cases say it is more important that ADM functions correctly: and denial of PF
must always result in invalidity of the decision (Cardinal v Dir of Kent)