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CML 2312: Administrative Law

CML 2312: Administrative Law . Forcese. Review. Control of Power: 4 Question Approach. The Four Questions. Who exercises the control? What procedure must be followed in seeking to control the exercise of delegated power? On what grounds is control exercised? What relief can be granted?.

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CML 2312: Administrative Law

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  1. CML 2312: Administrative Law Forcese CML 2312: Administrative Law (Forcese)

  2. Review • Control of Power: 4 Question Approach • The Four Questions • Who exercises the control? • What procedure must be followed in seeking to control the exercise of delegated power? • On what grounds is control exercised? • What relief can be granted? Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  3. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control • STOP! • A few comments on “administrative” or “statutory” appeals Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  4. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control • Judicial review in Ontario: Judicial Review Procedures Act • 2.--(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: • 1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. • 2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  5. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control • Aspects of s.2: • “despite any right of appeal” • Matsqui (1995), SCC: obligation to seek "adequate alternative administrative remedies" before pursuing judicial review • may be inadequate alternative remedy where: scope of appeal insufficient; appellate body lacks necessary power; the appeal is slow, expensive, cumbersome • 2.--(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: • 1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. • 2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  6. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control • Aspects of s.2: • What is a “statutory power” • 2.--(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: • 1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. • 2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  7. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control • Aspects of s.2: • What is a “statutory power” • s.1: "statutory power" means a power or right conferred by or under a statute, • (a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation, • (b) to exercise a statutory power of decision, • (c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing, • (d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party. Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  8. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control • Aspects of s.2: • What is a “statutory power” • What is a “statutory power of decision” • s.1: "statutory power" means a power or right conferred by or under a statute, • (a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation, • (b) to exercise a statutory power of decision, • (c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing, • (d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party. Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  9. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control • Aspects of s.2: • What is a “statutory power” • What is a “statutory power of decision” • s.1: "statutory power of decision" means a power or right conferred by or under a statute to make a decision deciding or prescribing, • (a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or • (b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not, • and includes the powers of an inferior court. Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  10. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control • 2.--(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: • 1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. • 2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  11. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control JRPA: • Parties and standing • s-s.9(2) says that for the purposes of an application for judicial review in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power may be a party to the application • as a general principle, for other person to have standing, the interests of that person must have been "prejudicially affected" by the decision Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  12. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control JRPA: • Parties and standing • Venue • typically heard by Divisional Court • s.6(2): leave to be heard by Superior Court of Justice where the case is one of urgency and where the delay required for an application for Divisional Court is likely to involve a failure of justice Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  13. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control JRPA: • Parties and standing • Venue • Procedure • Application for JR brought by way of originating notice of application • Must set out grounds for relief and nature of the relief sought • Procedure to be followed set out in Rule 68 Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  14. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control JRPA: • Parties and standing • Venue • Procedure • Remedies • makes minor changes to common law remedies Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  15. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control JRPA: • Parties and standing • Venue • Procedure • Remedies • Appeals • to the Court of Appeal with leave, in accordance with Rule 61 Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  16. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control Federal Courts Act and the Federal Courts of Canada • 1. Over whom does the FCC have JR jurisdiction? • 2. What is the scheme for JR? • a. What impact does the existence of a statutory right of appeal have? • b. What level of court do we go to? • c. Who may bring an application for JR? • d. When must the application be brought? • e. What procedure is followed? • f. What are the grounds for review? • g. What are the remedies? • decisions, orders or other administrative actions of a “federal board, commission or other tribunal” • s.2 of the FCA: • "federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867” Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  17. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control Federal Courts Act and the Federal Courts of Canada • 1. Over whom does the FCC have JR jurisdiction? • 2. What is the scheme for JR? • a. What impact does the existence of a statutory right of appeal have? • b. What level of court do we go to? • c. Who may bring an application for JR? • d. When must the application be brought? • e. What procedure is followed? • f. What are the grounds for review? • g. What are the remedies? • ss.18, 18.1-18.5 and 28 of the FCA govern JR jurisdiction” Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  18. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control Federal Courts Act and the Federal Courts of Canada • 1. Over whom does the FCC have JR jurisdiction? • 2. What is the scheme for JR? • a. What impact does the existence of a statutory right of appeal have? • b. What level of court do we go to? • c. Who may bring an application for JR? • d. When must the application be brought? • e. What procedure is followed? • f. What are the grounds for review? • g. What are the remedies? • s.18.5: • ...where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision [of a delegate], that decision or order is not, to the extent that it may be so appealed, subject to review… Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  19. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control Federal Courts Act and the Federal Courts of Canada • 1. Over whom does the FCC have JR jurisdiction? • 2. What is the scheme for JR? • a. What impact does the existence of a statutory right of appeal have? • b. What level of court do we go to? • c. Who may bring an application for JR? • d. When must the application be brought? • e. What procedure is followed? • f. What are the grounds for review? • g. What are the remedies? • s.28 assigns JR jurisdiction over a dozen named delegates to the Court of Appeal Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  20. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control Federal Courts Act and the Federal Courts of Canada • 1. Over whom does the FCC have JR jurisdiction? • 2. What is the scheme for JR? • a. What impact does the existence of a statutory right of appeal have? • b. What level of court do we go to? • c. Who may bring an application for JR? • d. When must the application be brought? • e. What procedure is followed? • f. What are the grounds for review? • g. What are the remedies? • Concept of “originating” (or “original”) and “exclusive” jurisdiction • s.28 assigns JR jurisdiction over a dozen named delegates to the Court of Appeal • if delegate not named in s.28 or another statute, then s.18 governs Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  21. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control Federal Courts Act and the Federal Courts of Canada • 1. Over whom does the FCC have JR jurisdiction? • 2. What is the scheme for JR? • a. What impact does the existence of a statutory right of appeal have? • b. What level of court do we go to? • c. Who may bring an application for JR? • d. When must the application be brought? • e. What procedure is followed? • f. What are the grounds for review? • g. What are the remedies? • s-s.18.1(1): anyone “directly affected by the matter in respect of which relief is sought” • includes “public interest standing” • public interest standing may be accorded where the applicant has a genuine interest in a real issue and there is no evidence of others with a genuine interest that could reasonably be expected to bring a challenge. Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  22. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control Federal Courts Act and the Federal Courts of Canada • 1. Over whom does the FCC have JR jurisdiction? • 2. What is the scheme for JR? • a. What impact does the existence of a statutory right of appeal have? • b. What level of court do we go to? • c. Who may bring an application for JR? • d. When must the application be brought? • e. What procedure is followed? • f. What are the grounds for review? • g. What are the remedies? • s.18.1(2), application for JR must be filed within 30 days after decision first communicated Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  23. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control Federal Courts Act and the Federal Courts of Canada • 1. Over whom does the FCC have JR jurisdiction? • 2. What is the scheme for JR? • a. What impact does the existence of a statutory right of appeal have? • b. What level of court do we go to? • c. Who may bring an application for JR? • d. When must the application be brought? • e. What procedure is followed? • f. What are the grounds for review? • g. What are the remedies? • File notice of application • in the notice of application, set out: the division of the court; the names of the applicant and the respondent; the delegate who is being reviewed; the date on which the delegate's decision was communicated; the relief sought; the grounds to be argued; list of documentary evidence Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  24. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control Federal Courts Act and the Federal Courts of Canada • 1. Over whom does the FCC have JR jurisdiction? • 2. What is the scheme for JR? • a. What impact does the existence of a statutory right of appeal have? • b. What level of court do we go to? • c. Who may bring an application for JR? • d. When must the application be brought? • e. What procedure is followed? • f. What are the grounds for review? • g. What are the remedies? • s.18.1(4) Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  25. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control Federal Courts Act and the Federal Courts of Canada • 1. Over whom does the FCC have JR jurisdiction? • 2. What is the scheme for JR? • a. What impact does the existence of a statutory right of appeal have? • b. What level of court do we go to? • c. Who may bring an application for JR? • d. When must the application be brought? • e. What procedure is followed? • f. What are the grounds for review? • g. What are the remedies? • s.18.1(3): • On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) Declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  26. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control • Federal Checklist: • 1. Was the decision made by a federal board, commission or tribunal as defined by s.2? • 2. Is there a statutory appeal available to one of the bodies listed in s.18.5? • 3. If there is no statutory appeal or the appeal has been exhausted, is the delegate listed in s.28 or does the delegating statute provide for JR to the Court of Appeal? • 4. Do you have standing to bring an application, either because you are directly affected or via the public interest standing test? • 5. Are you within the 30 day window? • 6. What are the grounds for review? • 7. What remedies are you seeking? Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  27. Review • Control of Power: 4 Question Approach • Question 1: Who exercises control • Forms of Control • Federal Checklist: • 1. Was the decision made by a federal board, commission or tribunal as defined by s.2? • 2. Is there a statutory appeal available to one of the bodies listed in s.18.5? • 3. If there is no statutory appeal or the appeal has been exhausted, is the delegate listed in s.28 or does the delegating statute provide for JR to the Court of Appeal? • 4. Do you have standing to bring an application, either because you are directly affected or via the public interest standing test? • 5. Are you within the 30 day window? • 6. What are the grounds for review? • 7. What remedies are you seeking? Control of the Exercise of Delegated Power CML 2312: Administrative Law (Forcese)

  28. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 1. What do we mean by “grounds” for judicial review? • Exceeding limits imposed by the Constitution • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  29. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 1. What do we mean by “grounds” for judicial review? • B. Limits imposed at common law • i.e. procedural fairness • i.e. abuse of discretion • C. Limits imposed by procedural statutes like the SPPA and the Bill of Rights • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  30. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 1. What do we mean by “grounds” for judicial review? • D. Exceeding the limits of the statute delegating power • e.g. statute gives delegate jurisdiction in Ontario; operates in Quebec • e.g. statute gives delegate powers over lobster fishing; regulates deer hunting • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  31. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 2. What is a “privative clause”? • privative clauses are statutory provisions whose intended effect is to make the delegate's decision final and binding, and prevent any review of the delegate's decision by the courts • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  32. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 2. What is a “privative clause”? • privative clauses are statutory provisions whose intended effect is to make the delegate's decision final and binding, and prevent any review of the delegate's decision by the courts • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  33. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 2. What is a “privative clause”? • 1. Reduce protracted delays associated with court action • 2. Reduce expense associated with court action • 3. Allow matters better dealt with administratively to be dealt with by delegates • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  34. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 2. What is a “privative clause”? • Ontario Labour Relations Act • 114. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes… • 116. No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings. • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  35. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 2. What is a “privative clause”? • Ontario Employment Standards Act • 68(25) A decision of the Board under this section is final and binding upon the parties to the decision and such other parties as the Board may specify. • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  36. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 2. What is a “privative clause”? • Court’s don’t accept that privative clauses can remove review for jurisdiction • Jacmain (SCC) (1978): "It is hard to believe that a legislature would create a tribunal with a limited jurisdiction and yet bestow on such tribunal [by shielding it from judicial review] an unlimited power to determine the extent of its jurisdiction." • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  37. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 2. What is a “privative clause”? • Court’s don’t accept that privative clauses can remove review for jurisdiction • Jacmain (SCC) (1978): "It is hard to believe that a legislature would create a tribunal with a limited jurisdiction and yet bestow on such tribunal [by shielding it from judicial review] an unlimited power to determine the extent of its jurisdiction." • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  38. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 2. What is a “privative clause”? • Court’s don’t accept that privative clauses can remove review for jurisdiction • Constitutional basis: Crevier (SCC):“...this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. . . . “ • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  39. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • 3. What do we mean by “curial deference”? • "curial deference" means deference by the courts to the decisions of delegates • Why curial deference? • Wilson J in Corn Growers • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  40. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Problem! • Distinguishing between jurisdictional and non-jurisdictional errors of law • . Control of the Exercise of Delegated Power Power Diagram Is the error of law within the pie (intra-jurisdictional)? Or is the error jurisdictional? CML 2312: Administrative Law (Forcese)

  41. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Problem! • Distinguishing between jurisdictional and non-jurisdictional errors of law • Different approaches: • E.g. Defects in “acquiring” jurisdiction • Maurice, SCC • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  42. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Problem! • Distinguishing between jurisdictional and non-jurisdictional errors of law • Different approaches: • 1. First School: Hostility to deference • Anisminic (House of Lords, 1969) • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  43. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Problem! • Distinguishing between jurisdictional and non-jurisdictional errors of law • Different approaches: • 1. First School: Hostility to deference • Justification: “It was designed to ensure that the sovereign will of parliament was not transgressed by those to whom such grants of power were made.” • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  44. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Problem! • Distinguishing between jurisdictional and non-jurisdictional errors of law • Different approaches: • 2. Second School: Extreme Deference (?) • CUPE, SCC, 1979 • L’Acadie, SCC • . Control of the Exercise of Delegated Power Power Diagram CML 2312: Administrative Law (Forcese)

  45. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Problem! • Distinguishing between jurisdictional and non-jurisdictional errors of law • . Control of the Exercise of Delegated Power Power Diagram Is the error of law within the pie (intra-jurisdictional)? Or is the error jurisdictional? CML 2312: Administrative Law (Forcese)

  46. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Old approach: preliminary question doctrine • i.e. a delegate can regulate lobster fishing where there is a shortage of lobster • failed to establish test for what was “preliminary question” and what wasn’t • . Control of the Exercise of Delegated Power Power Diagram Is the error of law within the pie (intra-jurisdictional)? Or is the error jurisdictional? CML 2312: Administrative Law (Forcese)

  47. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Next approach: “pragmatic and functional” approach for distinguishing between jurisdictional and non-jurisdictional errors of law • 1. the wording of the enactment conferring jurisdiction on the administrative tribunal • 2. the purpose of the statute creating the tribunal and the reason for its existence • 3. the area of expertise of its members • 4.the nature of the problem before the tribunal • . Control of the Exercise of Delegated Power Power Diagram Is the error of law within the pie (intra-jurisdictional)? Or is the error jurisdictional? CML 2312: Administrative Law (Forcese)

  48. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Next approach: “pragmatic and functional” approach for distinguishing between jurisdictional and non-jurisdictional errors of law • outcome of functional and pragmatic test effectively determines the standard of review • jurisdictional errors of law: correctness • intra-jurisdictional errors of law: patently unreasonable • . Control of the Exercise of Delegated Power Power Diagram Is the error of law within the pie (intra-jurisdictional)? Or is the error jurisdictional? CML 2312: Administrative Law (Forcese)

  49. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Yikes!: “pragmatic and functional” approach and the idea of a “spectrum” standards of review • arises in the context of “statutory appeals” not judicial review • Pezim, SCC • Bell Canada, SCC • Southam, SCC • . Control of the Exercise of Delegated Power Power Diagram Is the error of law within the pie (intra-jurisdictional)? Or is the error jurisdictional? CML 2312: Administrative Law (Forcese)

  50. Judicial Review • Control of Power: 4 Question Approach • Question 3: On what grounds is control exercised? • Conceptual introduction to grounds for judicial review • Yikes!!#@@!$#!: the idea of a “spectrum” standards of review imported into judicial review • Pushpanathan, SCC • 1. Privative clause (wording of Act) • 2. Expertise • 3. Purpose of Act/Provision • 4. Nature of Problem • . Control of the Exercise of Delegated Power Power Diagram Is the error of law within the pie (intra-jurisdictional)? Or is the error jurisdictional? CML 2312: Administrative Law (Forcese)

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