Background & purpose of the system 1 basic institutions, processes, and players 3

REFLECTING ON PROCESS

Civil Justice and Administrative Law

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  J Cowan “Administrative Law in Canada”
  
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    Ensures that government actions are authorized by Parliament or by provincial legislatures, and that law s are implemented and administered in a fair and reasonable manner
    
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    Increasing complexity of the modern state – time, resources and expertise required to regulate all aspects of society. Provincial governments delegate jurisdiction and power to admin bodies to do specialized work
    
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    Delegating legislation defines the powers given to an agency (tribunal falls under statute)- created by statute
    
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  Key Questions: What kind of justice do tribunals have to deliver – same as courts? What is the standard of review?
  

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  E.g. Human Rights Code is delegated legislation, gives jurisdiction to Human Rights Tribunal which has it’s own set of
  

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  Relationship between courts and tribunals
  
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    Legislation that sets up the court: CJA, Federal Courts Act, Supreme Court Act, etc.
    
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    Enabling legislation for admin. law: SPPA, JRPA
    
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      Statutory Powers and Procedures Act: similar to the CJA, omnibus legislation. Applies in concert with more specific legislation in relation to a particular tribunal (e.g, the RTA, 2006)
      
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      Judicial Review Procedures Act: Appeals go to Divisional Court
      
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  What counts as procedural justice in the admin world?- invokes questions such as: what are the rules of the game e.g. how specific are the rules? What degree of formality/flexibility/tailoring to context? Generally it has been deferred to the tribunals to decide what procedural tools is appropriate to deliver procedural justice
  
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    Natural justice, rule of law, order and fairness all framing values
    
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    Baker (1999 SCC): Mother who applied for citizenship was required to be outside the country (her life was here). Question about the welfare of her children, etc. so she was asking for relief from this requirement.
    
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      Issue: does procedural justice require a hearing? What kind of reasons are adequate?
      

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  She got notes from the immigration officer with derogatory and negative comments. Clear on the face that the officer was demonstrating a bias towards the applicant – parties expect DM to be free of bias
  
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  Does best interests of the child play in? Role of UN convention in this area (international statute/norms) to animate the legal framework? Held: yes should have taken into account both- even international documents. Can be used to interpret domestic law
  
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  Raises many questions around what is procedural justice
  
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  Standard of review: what level of scrutiny should the court bring in reviewing this decision
  
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    Vavilov sets out the approach
    
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    Presumptive default is reasonableness of decision (V: unreasonable) *we don’t need to know what counts as
    

reasonable

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  Can be rebutted – limited exceptions
  
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    (1) Where enabling legislation or rule of law specifically prescribes a different standard -> standardof correctness
    
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    (2) Qs of fact -> standard of overriding error *higher standard
    
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  Recent example Tourangeau:
  
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    Recognizes motions of pluralism
    
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    Situates indigenous council as body for admin law purposes
    
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    Shows notion of deference from federal tribunal
    

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