CML 2312: ADMINISTRATIVE LAW
Forcese
CML 2312: Administrative Law (Forcese)
Control of Power: 4 Question Approach
The Four Questions
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
STOP!
A few comments on
“administrative” or
“statutory” appeals
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
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.
Judicial review in Ontario:
Judicial Review Procedures Act
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
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.
•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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
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.
•Aspects of s.2:
• What is a “statutory power”
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
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.
•Aspects of s.2:
• What is a “statutory power”
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
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.
•Aspects of s.2:
• What is a “statutory power”
•What is a “statutory power of
decision”
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
s.1: "statutory power of decision" means a •Aspects of s.2:
power or right conferred by or under a
• What is a “statutory power”
statute to make a decision deciding or
•What is a “statutory power of
prescribing,
(a) the legal rights, powers, privileges,
decision”
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.
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
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.
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
•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
JRPA:
•Parties and standing
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
• 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
JRPA:
•Parties and standing
•Venue
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
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
•
JRPA:
•Parties and standing
•Venue
•Procedure
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
• makes minor changes to
common law remedies
JRPA:
•Parties and standing
•Venue
•Procedure
•Remedies
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
• to the Court of Appeal with
leave, in accordance with Rule
61
JRPA:
•Parties and standing
•Venue
•Procedure
•Remedies
•Appeals
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
• 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”
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
• ss.18, 18.1-18.5 and 28 of the
FCA govern JR jurisdiction”
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
Federal Courts Act and the Federal Courts of
Canada
• 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…
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
•s.28 assigns JR jurisdiction
over a dozen named delegates
to the Court of Appeal
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
•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
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
• 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.
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
•s.18.1(2), application for JR must
be filed within 30 days after
decision first communicated
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
•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
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
• s.18.1(4)
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 1: Who exercises control
Forms of Control
• s.18.1(3):
Federal Courts Act and the Federal Courts of
Canada
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.
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
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?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
1. What do we mean by
“grounds” for judicial
review?
A. Exceeding
limits imposed
by the
Constitution
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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.
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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.
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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."
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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."
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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. . . . “
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
Problem!
• Distinguishing between
jurisdictional and nonjurisdictional errors of law
Is the error of law within the pie
(intra-jurisdictional)?
Or is the error jurisdictional?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
Problem!
• Distinguishing between
jurisdictional and nonjurisdictional errors of law
• Different approaches:
• E.g. Defects in “acquiring”
jurisdiction
• Maurice, SCC
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
Problem!
• Distinguishing between
jurisdictional and nonjurisdictional errors of law
• Different approaches:
1. First School: Hostility to
deference
• Anisminic (House of
Lords, 1969)
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
Problem!
• Distinguishing between
jurisdictional and nonjurisdictional 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.”
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
Problem!
• Distinguishing between
jurisdictional and nonjurisdictional errors of law
• Different approaches:
2. Second School: Extreme
Deference (?)
• CUPE, SCC, 1979
• L’Acadie, SCC
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
Problem!
• Distinguishing between
jurisdictional and nonjurisdictional errors of law
Is the error of law within the pie
(intra-jurisdictional)?
Or is the error jurisdictional?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Is the error of law within the pie
(intra-jurisdictional)?
Or is the error jurisdictional?
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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Is the error of law within the pie
(intra-jurisdictional)?
Or is the error jurisdictional?
Conceptual introduction to grounds for judicial review
•Next approach: “pragmatic and
functional” approach for distinguishing
between jurisdictional and nonjurisdictional 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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Is the error of law within the pie
(intra-jurisdictional)?
Or is the error jurisdictional?
Conceptual introduction to grounds for judicial review
•Next approach: “pragmatic and
functional” approach for
distinguishing between
jurisdictional and nonjurisdictional 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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Is the error of law within the pie
(intra-jurisdictional)?
Or is the error jurisdictional?
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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Is the error of law within the pie
(intra-jurisdictional)?
Or is the error jurisdictional?
Conceptual introduction to grounds for judicial review
•Yikes!!#@@!$#!: the idea of
a “spectrum” standards of
review imported into judicial
review
•Pushpanathan, SCC
1. Privative clause
(wording of Act)
2. Expertise
3. Purpose of Act/Provision
4. Nature of Problem
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Is the error of law within the pie
(intra-jurisdictional)?
Or is the error jurisdictional?
Conceptual introduction to grounds for judicial review
•Yikes!!#@@!$#!: the idea of
a “spectrum” standards of
review imported into judicial
review
•The Emperor has no
clothes!
•Lebel J.’s assessment
in his concurring
opinion in Toronto v.
CUPE
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
•Pause and segue: abuse of
discretion as a grounds for review
• Classic concept: discretion
exercised for an improper
purpose or on the basis of
wrong principles or in bad
faith or in a discriminatory
fashion, or a failure to
exercise discretion because
delegate improperly views
discretion as fettered
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
•Pause and segue: abuse of
discretion as a grounds for
review
• Classic concept:
• improper purpose
(Multi-Mall)
• Bad faith (Roncarelli)
• Discrimination
(Winton)
• Fettering
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
•Pause and segue: abuse of
discretion as a grounds for
review
• The Baker synthesis:
• in deciding whether
curial deference is
owed to the product
of a discretionary
decision, use the
pragmatic &
functional test
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
Conceptual introduction to grounds for judicial review
•Pause and segue: error of
fact as a ground for review
• Historical deference at
common law
• Historical deference in
the Federal Courts Act
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
The Grand Unified Theory of Standard of Review ?
•Back to the Future: Dunsmuir
and the new “standard of review”
approach
• Back to two standards of
review, now “reasonableness”
and “correctness”
• Does the new test for which
standard applies create
“defaults” or just warm over
the “pragmatic and functional”
approach
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
The Grand Unified Theory of Standard of Review ?
•Back to the Future:
Dunsmuir and the new
“standard of review” approach
• Khosa confusion: the
pragmatic and functional
approach as zombie
• Smith v. Alliance, 2011 SCC 7
and deliverance from evil?
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
The Grand Unified Theory of Standard of Review ?
•Back to the Future: Smith v. Alliance, 2011 SCC 7:
Under Dunsmuir, the identified categories are subject to review for either
correctness or reasonableness. The standard of correctness governs: (1) a
constitutional issue; (2) a question of “general law ‘that is both of central
importance to the legal system as a whole and outside the adjudicator’s
specialized area of expertise’” ...; (3) the drawing of jurisdictional lines
between two or more competing specialized tribunals; and (4) a “true
question of jurisdiction or vires” (paras. 58-61). On the other hand,
reasonableness is normally the governing standard where the question: (1)
relates to the interpretation of the tribunal’s enabling (or “home”) statute or
“statutes closely connected to its function, with which it will have particular
familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3)
involves inextricably intertwined legal and factual issues (paras. 51 and 5354).
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
The Grand Unified Theory of Standard of Review ?
•Back to the Future:
Dunsmuir and the new
“standard of review” approach
• Post-Dunsmuir
deliberations:
• The question of “true
jurisdiction”: Public
Service Alliance (FCA)
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review
Control of Power: 4 Question Approach
Question 3: On what grounds is control exercised?
Power Diagram
The Grand Unified Theory of Standard of Review ?
•Back to the Future:
Dunsmuir and the new
“standard of review” approach
• Post-Dunsmuir
deliberations:
• Applying
“reasonableness”: Art
Hauser (SKCA);
Macdonald (ABCA)
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Judicial Review