Administrative LawIntroduction– Chapters 1 & 2

Administrative Law, Principles & Advocacy

What is administrative law?

◦Rules created and applied by those having governmental powers such as boards, agencies, commissions, and tribunals. These are powers delegated from the executive branch to their delegates.

◦There is a significant impact on individuals and business because many activities are regulated by these bodies

Administrative Law Definitions

What is administrative law?

◦Administrative Law is tough to understand at first glance, so what follows are a number of traditional definitions of this exciting area of law.

Administrative Law Definitions

What is administrative law Administrative law deals with complaints respecting government

action that adversely affects an individual. Administrative law involves determining the legality of government actions. Governments cannot perform any act. Governments act through government officials who must act within certain limitations. Government power to act comes from legislation or royal prerogative. Thus, government officials must act within the scope of such legislation or royal prerogative which give their actions lawful authority. These are lawful actions. If government officials act outside the scope of their lawful authority and individuals are affected by these acts, then the principles of administrative law provide individuals with the ability to seek judicial review of the administrative action and possible remedies for the wrongful acts.

Administrative Law Definitions

What is administrative law The subject matter of administrative law is the law governing the

implementation of public programs, particularly at the point of delivery, where they are likely to have their most immediate impact on the lives and rights of individuals. Most of these programs are administered under the authority of a statute. These programs originate in the identification by government of a problem created by or not adequately addressed by the operation of the market or private law. Having identified the problem, government may respond in a number of ways: it may decide to do nothing; to deal with the problem through existing legal tools and institutions; or to create a new legal framework, administered by some agency other than the courts of law, designed specifically for this purpose. The adoption of the third option is the real of administrative law.

Administrative Law Definitions

What is administrative law Administrative law is the body of law that governs the activities of

administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, housing, social benefits, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction. Civil law countries often have specialized courts, administrative courts, that review these decisions.

Administrative Law Definitions

What is administrative law Administrative law is the body of law that establishes or

describes the legal parameters of powers that exist by virtue of statute or residual Royal Prerogative. In terms of the relation between administrative process and the regular courts, administrative law embodies the principles by which the courts supervise the functioning of persons and bodies that derive their powers from either statute or the Royal Prerogative.

Mullan (2001)

Administrative Law Definitions

What is administrative law Administrative law "deals with the legal limitations on the

actions of government officials, and on the remedies which are available to anyone affected by a transgression of these limits."

Villers and Jones (1998)

Administrative Law Definitions

What is administrative law Administrative law deals with the legal limitations on the

actions of government officials. Specifically, it concerns itself with the proper exercise of delegated power by these government officials and the control of this power by the courts. In large part, administrative law is about the scope and nature of judicial review of decisions made by government officials. It also about the remedies that are available to parties affected by decisions made by government officials that do not conform to standards set for the proper exercise of power

Consolidated definition

Administrative Law Definitions

It’s not just Federal and Provincial Governments that have laws.

MUNICIPAL GOVERNMENTS◦created by provincial legislation◦bylaw – a law made by the municipal

level of government.

◦Examples: zoning taxation for the benefit of the municipality subdivision licensing

Municipal Government Legislation

Who has jurisdiction over YOUR dispute?

It depends on the Constitution’s provisions respecting the division of powers, and upon the level of government that enacted the statute under which the dispute originates.

Government Legislation

Administrative Law – Division of Powers

Administrative Law – Division of Powers

Administrative Law – Division of Powers

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STATUTE LAW AND JURISDICTION◦ Exclusive jurisdiction – that one level of

government holds entirely on its own

◦ Concurrent jurisdiction – the area being regulated does not fall neatly into federal or provincial jurisdiction but straddles them

◦ Paramountcy – doctrine that provides that federal laws prevail when there are conflicting or inconsistent federal and provincial laws

The Canadian Legal System

Federal GovernmentParliament•House of Commons•Senate•law-making jurisdiction by s. 91 Constitution Act, 1867

Territorial Governments

• limited self-government• subject to federal control

Municipal Governments

• law-making jurisdiction granted bythe provincial legislature

Provincial GovernmentLegislature

• law-making jurisdiction bys. 92 Constitution Act, 1867

The Canadian Legal System

THE SYSTEM OF COURTS

◦Inferior Court – a court with limited financial jurisdiction whose judges are appointed by the provincial government

◦Small Claims Court – a court that deals with claims up to a specified amount. Limit is $25,000 in Ontario

◦Superior Court – a court with unlimited financial jurisdiction whose judges are appointed by the federal government

Judicial Branch of Government

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THE SYSTEM OF COURTS

◦Supreme Court of Canada – The final court for appeals in the country, usually of national concern or significance

◦Federal Court of Canada – The court that deals with some types of litigation involving the federal government

Judicial Branch of Government

Supreme Court of Canada

Courts of Appeal ( in each province and territory)

Superior Courts (in each province and territory)

Small Claims Courts

Federal Court (Appeal Division)

Federal Court(Trial Division)

Courts Dealing with Disputes

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Common Law

Sources of Law

ConstitutionalConvention

Royal Prerogative

Statute Law

Sources of Law

◦Royal Prerogative – historical rights and privileges of the Crown, including the right to conduct foreign affairs and to declare war

◦Common Law – rules that are formulated in judgments

◦Precedent – an earlier case used to resolve a current case because of its similarity

◦Equity – rules that focus on what would be fair given the specific circumstances of the case, as opposed to what the strict rules of common law might dictate

Sources of Law

Common law

Enabling statute for administrative tribunal

Statutory Powers Procedure Act, but only if SPPA applies to that Tribunal

Bill of Rights / Charter of Rights – Access to fundamental justice

Agency guidelines & rules

Sources of Law

Public LawAreas of the law relatingto or regulating the relationshipbetween persons and governments

Common LawJudge-made law andthe system of private law

Private LawAreas of law that concern

dealings between persons

Civil Law*Quebec system of private law

Classifications of the Law

EXAMPLES OF PUBLIC LAW

◦Criminal law ◦Tax Law◦Constitutional Law◦Administrative Law

Classifications of the Law

The Public Law Setting

It’s important to understand the march towards parliamentary sovereignty that allows parliament to make law. It all started like this, with the Monarch having the right to exercise all the power.

Power Diagram Key Events

•The Sphere of “de facto” power

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Monarch People

The Public Law Setting

The march towards parliamentary sovereignty continues, and by 1867, there are few roles left for the Monarch.

Power Diagram Key Events•Remaining prerogative powers by 1867:

• 1. Appointment of a Prime Minister• 2. Appointment of Ministers• 3. Dismissal of a government• 4. Dissolution of Parliament• 5. The creation of peers or Lords• 6. Prerogative of mercy• 7. Grant of patronage and honours• 8. Conduct of foreign affairs,

including declaration of war and signing of treaties

• 9. Crown cannot be sued without its permission

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Parliament Monarch

The Public Law Setting

The march towards parliamentary sovereignty continues, and by 1867, there are few roles left for the Monarch.

Power Diagram Key Events

•But eventually, even that residual prerogative was exercised only on the advice of the PM or Cabinet.

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Parliament Monarch

The Public Law Setting

Power Diagram Key Events

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“There is in Canada, a separation of powers among the three branches of government -- the legislature, the executive and the judiciary. In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.”

-- Fraser v. Canada, SCC

Canada, Confederation and the British North American Act:

The Separation of Powers

Power Diagram

The Public Law Setting

Power Diagram Key Events

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Why discretion?

“[The] delegation by governments to administrators and bureaucrats is necessary to ensure that the sheer volume of work which must be done by government is, in fact, able to be done. It is the recipients of these various delegated powers and authorities who perform most of the activities and make most of the decisions essential to the proper functioning of the government and the implementation of our laws.”

Wagner v. Williams, 1995, Man.Q.B., affirmed, Man. C.A.:

There is an enormous Capacity of Parliament to Delegate Powers to the Executive, and then for the executive to delegate powers to…statutory delegates

Power Diagram

The Public Law Setting

Power Diagram Key Events

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Subdividing the Executive’s Slice of the Power Diagram:

•The answer to “where is 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”: Where is the Power!

Power Diagram

Constitution Act, 1867

Royal Prerogative

The Most Important: Power delegated by statute

What is an administrative tribunal?

An administrative tribunal is an autonomous agency that is independent of the provincial government and is responsible for settling disputes between the government and its citizens. An administrative tribunal is also known as an agency, board or commission.

There are approximately 235 such agencies in Ontario in this “ABC” sector.

Administrative Law Tribunal

Here are but a few! Child and Family Services Review Board Custody Review Board Human Rights Tribunal of Ontario Landlord and Tenant Board Ontario Special Education (English) Tribunal Social Benefits Tribunal Alcohol & Gaming Commission of Ontario Criminal Injuries Compensation Board Workplace Safety & Insurance Appeals Tribunal

Administrative Law Tribunals

Why were Tribunals created? First tribunals involved Labour & Worker's Comp.

Tribunals can be federal/provincial/municipal

Post-WWII: boom in tribunal creation due to recognition that society had become more complex. Didn't make sense to send all decisions to courts. Legislators decided to offload certain social administration problems to tribunals.

Administrative Law

Why were Tribunals created? Having the decision made by independent

Tribunals gives governments deniability and distance from hard decisions

Tribunals are supposed to be independent of government reach, but in fact many Tribunals have government supporters as appointees.

Administrative Law

Why were Tribunals created? Having the decision made by independent

Tribunals help to avoid conflicts of interest, as the decision makers are independent.

Having the decision made by independent Tribunals allows people specialized in a field to make the decisions rather than courts which may not have expertise.

Administrative Law

A couple of key requirements? An agency making adjudicative decisions

must separate the functions of the decision makers and the policy makers, investigators & prosecutors.

There can be no sub-delegation of authority to another in the agency. He who hears, must decide.

Administrative Law

Advantages of Tribunals over Courts

Cost: Nature of decisions made by Tribunals often inappropriate for courts. Lawyers & judges are expensive. Informality expedites process & balances out inequality concerns.

Efficiency: Trials not universally applicable (evaluation of conduct vs determination of misconduct), and not suitable for comparing different individual interests vs government efficiency interests. Fact-Finding: Trials are good for determining facts Choice: But trials are bad when making value judgments

Expertise: Expertise in areas beyond the law (e.g. Housing, human rights, tariffs or licensing).

Independence: from government & partisan concerns [overall duty on public body to act fairly in making decisions that affect rights, interests or privileges of individuals

Administrative Law

Similarities Between Tribunals & Courts

Fairness: Ensure parties have notice of the proceeding and have an opportunity to be heard.

Process: Allows evidence, adjournments, submissions, and provides written reasons.

Representation: Allows all parties to be represented by agent if they wish.

Adjudication: Like the courts, the triers of fact and law are impartial, apply the law according to the facts before them, and are relatively free from political pressure.

Administrative Law

Differences Between Tribunals & Courts

Fairness: Ensure parties have notice of the proceeding and have an opportunity to be heard. However the expedited process sometimes results in the full story not being told.

Process: Less formal, more flexible, less procedural. Less emphasis on ceremonial aspect of court, such as rising, introduction of judge

Pre-hearing process: More likely to experience trial by ambush, as often there is no process for disclosure, discovery and production of documents.

Adjudication: Not required to follow previous decisions of fellow members. More flexible rules regarding evidence. Adjudicators are not judges with inherent power, in fact, many are not lawyers or paralegals.

Administrative Law

Inquisitorial v. Adversarial Approach

Inquisitorial: Adjudicators are permitted to ask questions and conduct an investigation. This helps resolve the imbalance between the weak and the strong party, especially if that strong party is the government. The Tribunal may have the power to collect or refer to evidence independently of the parties, and consider the public interest. The adjudicator normally has special expertise in the subject matter.

Adversarial: In the tradition court process, the judge is more passive and the parties must bring forward their case without the intervention of the judge. This approach is based on sometimes flawed assumptions that both parties are equally knowledgeable, have resources to hire representation, and know the area of law in which the dispute is being framed.

Administrative Law

Inquisitorial v. Adversarial Approach

Inquisitorial v. Adversarial: It’s often not just one or the other. Some Tribunals combine both approaches. What is appropriate will be determined by the Tribunal’s mandate, its enabling statute, and what is fair in the circumstances.

For instance at the National Parole Board, traditional advocacy skills are not of much use to the party, and it is more of a fact-finding process. The Ontario Information and Privacy Tribunal can follow an inquisitorial process.

The Human Rights Tribunal and Landlord and Tenant Board are two agencies that are more court-like where advocacy skills are necessary and the approach is more adversarial.

Administrative Law

Statutory Powers Procedure Act

Inquisitorial v. Adversarial: Ontario, Alberta and British Columbia have statues that are used as models for Tribunals to use as a set of minimum procedural requirements for their ABC’s.

In Ontario, it’s called the Statutory Powers Procedure Act. The rules in this statute are derived from the traditional adversarial system.

In Alberta and BC, it’s called the Administrative Procedures Act, which is similar to Ontario’s SPPA.

In order for a Tribunal to be bound to follow the model, the Tribunal’s enabling statute would have to indicate that the proceedings are governed under the appropriate statute.

Administrative Law

Not All Tribunals Function Identically?

Function: Adjudicative versus policymaking. Function will affect structure.

Role in larger system: Policy-making vs. more adjudicative tribunals

Caseload: High caseload may affect degree of participatory rights.

Impact on people’s lives: huge impact on individual lives (i.e. immigration board or law society) versus simple licensing (i.e. DMV)

Composition and Membership: Lawyers, laypeople, professionals, tripartite…

Administrative Law

Not All Tribunals Function Identically?

Enforcement by Agencies: In may agencies, the government or court not only establishes rights and obligations, but also enforces compliance. Liquor license Tribunals, by-laws about health and safety heard as provincial offences fall into this group.

Enforcement by Person Affected: Although the government or courts have established rights and obligations, the government does not provide the staff or support to enforce the right. Person’s affected must attend a Tribunal to commence and prosecute the action. The Landlord and Tenant Board is an excellent example.

Administrative Law

Not All Tribunals Function Identically?

Advisory Agencies: In may agencies, the government agency provides advice to the ministry and assists in drafting policy, but does not carry out programs or make decisions. For instance, the Commodity Futures Advisory Board.

Regulatory Agencies: In may agencies, the government agency makes independent decisions that limit or promote conduct.

Adjudicative Agencies: In may agencies, the government agency makes independent decisions to resolve disputes over individuals and businesses. Some may be appeal bodies deciding on decisions made by bureaucrats, and others hear disputes from their inception.

Administrative Law

Administrative Law

Introduction– Chapters 1 & 2Administrative Law, Principles & Advocacy

End of Presentation