Administrative Law

Procedure for Judicial Review:

1. Should court execise discretion? - Are there any alternate procesdures
available?
eg. does the statute provide for an appeal process?
2. Do the Parties have standing?
3. Does the FCA apply?
4. Is it Substantive Review / PF Review?
5. What standard of review applies?– Correctness or Reasonableness
Factors:
a. privative clause
b. expertise of ADM
c. purpose of Act, and of provision
d. type of error – law/fact
6. Was there an abuse by the ADM?
Look at:
a. expertise
b. statute language
c. polycentricity of decision (affects one or all?)
d. statute intention
Also, What type of abuse? - see grounds of review, also : was discretion
delegated? Was it reveiwable discretion?
7. Should a duty of Fairness be imposed?
a. Participatory Rights: Duty triggered by: admin decision affecting rights
privs or interests of an individual.

Factors giving rise to a general duty: 1. Nature of decision; 2. relatioship btw

ADM and inidividual. 3. effect on individual's rights. Exceptions incl.
emergencies.

Ontario- does the statutory powers and procedures act apply?

would incl 4 part test: 1. statutory power of decision is being exercised, 2.does the
empowering legisl expressly excl/incl. SPPA? 3.Is the tribunal excl uinder 3(2)?
4.Would an oral hearing be required by law ? (otherwise SPPA does not apply).

Possible issues: Was notice given? Dsicovery? Delay? Type of hearing? Oral :
when credibility is an issue – high right to oral hearing (Khan). But participatory
rights do not ensure oral hearing in every case (Baker). Right to Cousel?
Requirement for Reasons?

b. Protection Against Bias:

Fundamental Principle of PF. 2 types of Bias:
1. Direct or Pecuniary
2. Reasonable Apprehension of Bias
Does FCA apply?
Fedl/Ont/B.C./P.E.I. --> Yes. Go to s18.1 of FCA (Forum: s28 FC)
Any other province --> No. Use Common Law principles of Judicial Review
(Forum: s96)

Type of Review
FCA Review : applies to both types = s18.1 FCA
CL Review : substantive errors (law / fact / discretion) = Substantive Review
procedural errors = PF review

Type of Error
Question of Law:
In Canada v Southam, at ¶65, Justice Iacobucci wrote:
"[Q]uestions of law are questions about what the correct legal test
is. Questions of fact are questions about what actually took place between
the parties. And questions of mixed law and fact are questions about whether
the facts satisfy the legal tests.

example: In the law of tort, the question what negligence means = question
of law. The question whether D did this or that = question of fact. And, if the
applicable standard is one of negligence, the question whether the defendant
satisfied the appropriate standard of care is a question of mixed law and fact.