Cml 2312 administrative law
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CML 2312: Administrative Law . Forcese. Review. Control of Power: 4 Question Approach What relief can be granted?: Certiorari. Scope of Remedy. Effect of Remedy. quashing of decision issue of remitting for re-determination.

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CML 2312: Administrative Law

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Cml 2312 administrative law

CML 2312: Administrative Law

Forcese

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power

  • Review

  • Control of Power: 4 Question Approach

  • What relief can be granted?: Certiorari

  • Scope of Remedy

  • Effect of Remedy

  • quashing of decision

  • issue of remitting for re-determination

  • in modern time, general, all-purpose remedy for any ground of JR

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power1

  • Review

  • Control of Power: 4 Question Approach

  • What relief can be granted?: Prohibition

  • Scope of Remedy

  • Effect of Remedy

  • prevents decisions not yet made

  • available to prevent wrongful assumption of jurisdiction

  • timing: available only where decision not yet made

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power2

  • Review

  • Control of Power: 4 Question Approach

  • What relief can be granted?: Mandamus

  • Scope of Remedy

  • Effect of Remedy

  • compels delegate to perform public duties

  • 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

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power3

  • Review

  • Control of Power: 4 Question Approach

  • What relief can be granted?: Habeas corpus

  • Scope of Remedy

  • Effect of Remedy

  • compels release of improperly detained person

  • 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

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power4

  • Review

  • Control of Power: 4 Question Approach

  • What relief can be granted?: Quo Warranto

  • Scope of Remedy

  • Effect of Remedy

  • person challenged successfully does not have powers of the public office

  • allows applicant to challenge person’s entitlement to public office

  • must be purported exercise of allegedly usurped office

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power5

  • Review

  • Control of Power: 4 Question Approach

  • What relief can be granted?: Declaration

  • Scope of Remedy

  • Effect of Remedy

  • not binding, but generally observed

  • court interprets provisions and declares true meaning

  • only on questions of law

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power6

  • Review

  • Control of Power: 4 Question Approach

  • What relief can be granted?: Injunction

  • Scope of Remedy

  • Effect of Remedy

  • effect varies according to type

  • 1. Classified by effect:

    • preventive injunctions

    • mandatory injunctions

  • 2. Classified by duration

    • interlocutory injunctions

      • 3 prong test in RJR:

      • Serious question

      • Irreparable harm

      • Balance of Convenience

    • permanent injunctions

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power7

  • Review

  • Control of Power: 4 Question Approach

  • What relief can be granted?: Discretion to decline remedies

  • Issue

  • Considerations

  • 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)

  • 1. Failure to exhaust administrative remedies

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power8

  • Review

  • Control of Power: 4 Question Approach

  • What relief can be granted?: Discretion to decline remedies

  • Issue

  • Considerations

  • Courts concerned about fragmentation

    • Usually only intervene preemptively in extraordinary circumstances

    • See, e.g., considerations weighed in Lorenz (FCA)

  • 2. Prematurity

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power9

  • Review

  • Control of Power: 4 Question Approach

  • What relief can be granted?: Discretion to decline remedies

  • Issue

  • Considerations

  • 3. Mootness

  • 4. Minor error

  • 5. No practical effect

  • 6. Timeliness of judicial review

  • 7. Applicant is bad

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Control of the exercise of delegated power10

  • Review

  • Footnote discussion: Other remedies for abuses of power

  • Issue

  • Considerations

  • 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

  • Tort for abuse/misfeasance of power

Control of the Exercise of Delegated Power

CML 2312: Administrative Law (Forcese)


Review

  • The Public Law Setting

  • Power Diagram

  • Key Events

  • .

  • 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.

Review

Accountability and the Administrative Law “Mantra”: Show me the Power!

Power Diagram

Constitution Act, 1867

Royal Prerogative

The Most Important: Power delagated by statute

CML 2312: Administrative Law (Forcese)


Review1

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

  • The Steps

  • .

  • 3. How is the power to be exercised?

    • Two sub-questions:

      • What is the procedure to be followed in the exercise of power?

        • Sources of these procedures:

          • Statute

          • Common law

          • Constitution

Review

  • 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?

  • 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?

Power Diagram

CML 2312: Administrative Law (Forcese)


Review2

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

  • .

Review

  • 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?

  • 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?

Flowchart: Procedural Review

Federal

Ontario

Common

Law

Bill of

Rights

Charter

SPPA

Common

Law

CML 2312: Administrative Law (Forcese)


Review3

  • The Seven Steps to Administrative Law Wisdom

  • .

Review

  • 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?

  • 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?

Flowchart: Procedural Review

Federal

Ontario

Common

Law

Bill of

Rights

Charter

SPPA

Common

Law

:

Triggers

3-prong

Leg. Exp.

Exceptions: Leg. decisions

CML 2312: Administrative Law (Forcese)


Review4

  • The Seven Steps to Administrative Law Wisdom

  • .

Review

  • 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?

  • 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?

Flowchart: Procedural Review

Federal

Ontario

Common

Law

Bill of

Rights

Charter

SPPA

Common

Law

:

Content:

Audi

Nemo

Right to be heard

Right to unbiased delegate

CML 2312: Administrative Law (Forcese)


Review5

  • The Seven Steps to Administrative Law Wisdom

  • .

Review

  • 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?

  • 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?

Flowchart: Procedural Review

Federal

Ontario

Common

Law

Bill of

Rights

Charter

SPPA

Common

Law

Trigger

Section 7: deprivation of

life, liberty or security

of the person

CML 2312: Administrative Law (Forcese)


Review6

  • The Seven Steps to Administrative Law Wisdom

  • .

Review

  • 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?

  • 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?

Flowchart: Procedural Review

Federal

Ontario

Common

Law

Bill of

Rights

Charter

SPPA

Common

Law

Content

At minimum, fundamental

justice means common law

procedural guarantees

CML 2312: Administrative Law (Forcese)


Review7

  • The Seven Steps to Administrative Law Wisdom

  • .

Review

  • 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?

  • 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?

Flowchart: Procedural Review

Federal

Ontario

Common

Law

Bill of

Rights

Charter

SPPA

Common

Law

:

Triggers

1(a): deprivation of life,

liberty, security of the person

or enjoyment of property

2(e): determination of

rights and obligations

CML 2312: Administrative Law (Forcese)


Review8

  • The Seven Steps to Administrative Law Wisdom

  • .

Review

  • 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?

  • 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?

Flowchart: Procedural Review

Federal

Ontario

Common

Law

Bill of

Rights

Charter

SPPA

Common

Law

:

Content

1(a): “due process”

2(e): fair hearing in

accordance with principles of

fundamental justice

CML 2312: Administrative Law (Forcese)


Review9

  • The Seven Steps to Administrative Law Wisdom

  • .

Review

  • 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?

  • 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?

Flowchart: Procedural Review

Federal

Ontario

Common

Law

Bill of

Rights

Charter

SPPA

Common

Law

:

Content

1(a): “due process”

2(e): fair hearing in

accordance with principles of

fundamental justice

CML 2312: Administrative Law (Forcese)


Review10

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

Review

  • 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?

  • 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?

Flowchart: Procedural Review

Federal

Ontario

Common

Law

Bill of

Rights

Charter

SPPA

Common

Law

Trigger

all tribunals exercising

statutory powers of decision

required to hold a hearing

CML 2312: Administrative Law (Forcese)


Review11

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

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?

  • 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.


Review12

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

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?

  • 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?

No appeal

Appeal

Judicial Review

Appeal to admin

body exhausted/

no adequate alternative

appeal


Review13

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

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?

  • 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

Ontario

JRPA


Review14

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

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?

  • 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

Ontario

FCA


Review15

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

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?

  • 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


Review16

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

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?

  • 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

Grounds

Errors where no deference

(procedural entitlements)

Errors where deference

Errors of law

Error of fact

Abuse of discretion


Review17

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

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?

  • 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

Grounds

Errors where no deference

(procedural entitlements)

Errors where deference

Errors of law

Error of fact

Abuse of discretion

Standard of Review Analysis


Review18

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

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?

  • 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

Ontario

Common Law

Prerogative Writs

Ordinary remedies


Review19

  • The Seven Steps to Administrative Law Wisdom

  • Power Diagram

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?

  • 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

Ontario

FCA, s.18 gives power

over most common law remedies;

However, FCC practice generally

to cite s.18.1(3)


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