1、Administrative Law,Chapter 8 The Reach of Procedural Fairness Rights,Minh Tran April 2009,Administrative Law,Concerned with: Regulation of governmental power in the states relations with individuals Exercise of statutorily authorized powers by designated actors Law governing the implementation of pu
2、blic programs, especially at the point of delivery (where they have most immediate impact on people),Administrative Law,Not concerned with: Regulations used to implement particular programs or policies; i.e., substantive law.,Scope of Administrative Law:,Municipalities, Human Rights, Immigration Reg
3、ulation and licensing of economic activities and industries, e.g. natural resources, telecommunications, liquor Labour relations, e.g. collective bargaining Income redistribution programs, e.g. welfare, pensions, Social control, e.g. parole board, prison discipline Professions and trades, e.g. law s
4、ocieties Commissions of inquiryAdministrative law is a set of principles and concepts common to all these different areas of law,Sources of Procedural Claims,The Charter and Principles of Fundamental JusticeThe clearest source of constitutional protection for procedural claims in Canada is found in
5、section 7 of the CharterHowever, section 1 allows the government to infringe upon a Charter right, if there are demonstrably justifiable reasons in a free and democratic society.,Sources of Procedural Claims,II. Canadian Bill of RightsSection 1(a): due process guarantee when “life, liberty, security
6、 of the person and enjoyment of property” are at stake. Section 2(e): “the right to a fair hearing in accordance with the principles of fundamental justice” when a persons rights and obligations are being determined.,Legislation that Specifically Addresses Procedural Rights,Most provinces do NOT hav
7、e any specific legislation in place related to procedures to be followed in administrative decision making. The exception is Alberta, Quebec and Ontario.,Alberta,Administrative Procedures Act: This Act only applies if it has been specifically incorporated into primary legislation or has been promulg
8、ated by an order of the Lieutenant Governor in Council This Act is far less detailed than Ontarios Act.,Quebec,Charter of Human Rights and Freedoms Procedural Guarantee: “full and equal public hearing” whenever a judicial or quasi-judicial body is determining “rights and obligations”.Administrative
9、Justice Act Applies to Government departments and other statutory authorities. The Act prescribed a general duty to act fairly and provides for specific procedural protections.,Ontario,Statutory Powers Procedure Act (SPPA) The Act has very detailed procedural protections. However, there are many sit
10、uations to which this Act does not apply it is not a far reaching Act.Application of Act Section 3.(1): Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is re
11、quired by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.,Ontario SPPA Cont.,Where Act does not apply Section 3(2): This Act does not apply to a proceeding,(a) before the Assembly or any committee of t
12、he Assembly;(b) in or before,(i) Court of Appeal; (ii) Superior Court of Justice; (iii) Ontario Court of Justice, (iv) Family Court; (v) Small Claims Court, or (vi) a justice of the peace;(c) to which the Rules of Civil Procedure apply;(d) before an arbitrator to which the Arbitrations Act or the La
13、bour Relations Act applies;(e) at a coroners inquest;(f) of a commission appointed under the Public Inquiries Act;(g) of one or more persons required to make an investigation and to make a report, with or without recommendations, where the report is for the information or advice of the person to who
14、m it is made and does not in any way legally bind or limit that person in any decision he or she may have power to make; or(h) of a tribunal empowered to make regulations, rules or by-laws in so far as its power to make regulations, rules or by-laws is concerned. Waiver Section 4.(1): Any procedural
15、 requirement of this Act, or of another Act or a regulation that applies to a proceeding, may be waived with the consent of the parties and the tribunal.,Procedures in the Relevant Legislation,Sometimes the legislation that governs the decision making body or the decision that needs to be made, cont
16、ains specific procedural requirements. This is another important source of procedural obligations.However, there are some qualifications on this: Are the provisions in the legislation a complete code? Does the legislation exclude the possibility that the procedures could be supplement by common law
17、principles? Could the procedures (or lack thereof) prescribed in the legislation be challenged on the basis that they are inadequate or that they violate constitutional standards?,The Common Law,Historical Canadian Administrative Law:Cooper v. Board of Works for Wandsworth District Took a very pragm
18、atic approach to whether or not a hearing had to be held. Looked at factors such as the nature of the interests at stake, the impact of the decision upon that interests, sanction to be imposed and the costs and benefits of holding a trial.Judicial v. Administrative: For many years the essential test
19、 for assessing whether or not a hearing was required was based on the distinction between judicial or quasi-judicial bodies, on the one hand, and purely administrative bodies on the other. This was a very difficult distinction to apply in practice, and the courts never provided clear direction as to
20、 what constituted judicial or administrative bodies.,The Common Law,Modern Canadian Administrative LawHas returned to the functional base that characterized Cooper. Key cases: Nicholson Minister of National Revenue v. Coppers & Lybrand Knight Canadian Association of Regulated Importers v. Canada Re
21、Webb Baker,Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police,Facts: Nicholson was fired from his job as police officer while he was still on probation as a new employee (less than 18 months). - The relevant legislation provided that police officers are entitled to a hearing be
22、fore being dismissed, unless they are still in their 18-month probation period.Legal Principles: Distinction between judicial and administrative functions should no longer determine procedural claims Duty to act fairly could apply to purely administrate functions as well. Decision: Nicholson was ent
23、itled to an opportunity (whether orally or in writing) to respond to criticisms of his performance before he was dismissed.,Minister of National Revenue v. Coppers & Lybrand,There may be some cases where the distinction between judicial, quasi-judicial and administrative functions will matter. Case
24、provides a list of non-exhaustive factors that if answered in the positive, indicate a judicial or quasi-judicial function. Example of the factors include: Is the issue at stake one that requires the application of specific rules to a particular case (as opposed to one of broader social or economic
25、policy)? Does the decision affect the rights and obligations of the applicant?,Other Important Principles Emerging from Case Law:,*Legislative action does NOT give rise to an obligation of procedural fairness. (knight)*,Other Important Principles Emerging from Case Law:,*Procedural fairness claims w
26、ill not generally apply to broad, policy-based decision-making, which affects a range of constituencies.*However, note that courts have had difficulty with the drawing the line between broad policy-based decisions and more narrow individualized decisionsCanadian Association of Regulated Importers v.
27、 CanadaFacts: Minister changed the allocation of import quota for hatching eggs and chickens -the importers said that they should have been given notice of this change and the opportunity to respondTrial Court: NOT a legislative decision = procedural fairness obligations Court of Appeal: changing qu
28、ota policy was a legislative or policy decision = no procedural fairness obligations existTake Away Point: There is still a great deal of uncertainty and clarification from the Supreme Court of Canada is needed!,Other Important Principles Emerging from Case Law:,*High standard of justice is required
29、 when the right to continue in ones profession or employment is at stake. (Knight)*,Other Important Principles Emerging from Case Law:,*Those applying for licenses and various other forms of government benefits are often not entitled to procedural fairness. However, once the benefit has been granted
30、 and is at risk of being taken away, then procedural fairness benefits may apply. (Re Webb)*,Other Important Principles Emerging from Case Law:,*The relevant inquiry is focused on the individual circumstances of the case at hand (Baker)*,The Content of Procedural Fairness,Once it has been determined
31、 that a duty of procedural fairness is owed, it then needs to be determined what the duty entails Court take a very context-sensitive approach,Content of Duty of Fairness,The closer a decision-making function is to the legislative end of the spectrum, the fewer the procedural fairness obligations wi
32、ll be. (Nicholson),Content of Duty,Courts recognize that certain interests require greater procedural protections than others. For example: Nicholson: probationary police officer = minimal procedural rights (due to his limited status) Julius Kane: tenured professor = higher level of procedural prote
33、ction Baker = resisting removal from Canada = more than minimal procedural rights.,Non-Exhaustive List of Factors from Baker,The nature of the decision Judicial type of decision and process = greater procedural protections Closer to a legislative decision = fewer procedural protectionsThe nature of
34、the statutory scheme and the statutory provisions under which the administrative body operates,Non-Exhaustive List of Factors from Baker,The importance of the decision to the individual or people affected 4) Did the challenger have legitimate expectations regarding procedure based promises, practices or representations of the decision-maker? if a LE is found to exist then this will affect the content of the DOF LE is based on conduct of parties and is particular to the circs,The END!,Thank you,
