CML 2312: ADMINISTRATIVE LAW
Forcese
CML 2312: Administrative Law (Forcese)
Control of Power: 4 Question Approach
What relief can be granted?: Certiorari
Scope of Remedy
Effect of Remedy
•in modern time, general, allpurpose remedy for any
ground of JR
• quashing of decision
• issue of remitting for redetermination
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
What relief can be granted?: Prohibition
Scope of Remedy
Effect of Remedy
• timing: available only
where decision not yet
made
• prevents decisions not yet
made
• available to prevent
wrongful assumption of
jurisdiction
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
What relief can be granted?: Mandamus
Scope of Remedy
Effect of Remedy
•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
•compels delegate to perform
public duties
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
What relief can be granted?: Habeas corpus
Scope of Remedy
Effect of Remedy
•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
•compels release of improperly
detained person
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
What relief can be granted?: Quo Warranto
Scope of Remedy
• allows applicant to
challenge person’s
entitlement to public
office
• must be purported
exercise of allegedly
usurped office
Effect of Remedy
person challenged
successfully does not have
powers of the public office
•
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
What relief can be granted?: Declaration
Scope of Remedy
Effect of Remedy
• court interprets
provisions and declares
true meaning
• only on questions of
law
• not binding, but generally
observed
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
What relief can be granted?: Injunction
Scope of Remedy
Effect of Remedy
1. Classified by effect:
•
preventive injunctions
•
mandatory injunctions
2. Classified by duration
•
interlocutory injunctions
•
3 prong test in RJR:
1. Serious question
2. Irreparable harm
3. Balance of Convenience
•
permanent injunctions
• effect varies according to type
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
What relief can be granted?: Discretion to decline remedies
Issue
Considerations
1. Failure to exhaust
administrative remedies
• 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)
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Control of Power: 4 Question Approach
What relief can be granted?: Discretion to decline remedies
Issue
2. Prematurity
Considerations
•Courts concerned about
fragmentation
•Usually only intervene
preemptively in extraordinary
circumstances
•See, e.g., considerations
weighed in Lorenz (FCA)
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
Footnote discussion: Other remedies for abuses of power
Issue
Considerations
Tort for abuse/misfeasance of power
•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
CML 2312: Administrative Law (Forcese)
CONTROL OF THE EXERCISE OF DELEGATED POWER
Review
REVIEW
The Public Law Setting
Accountability and the Administrative Law
“Mantra”: Show me the Power!
Power Diagram
Key Events
Constitution
Act, 1867
Royal
Prerogative
The Most Important: Power
delagated by statute
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.
CML 2312: Administrative Law (Forcese)
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?
Power Diagram
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 Steps
3. How is the power to be exercised?
• Two sub-questions:
1. What is the procedure to be
followed in the exercise of
power?
• Sources of these
procedures:
• Statute
• Common law
• Constitution
CML 2312: Administrative Law (Forcese)
REVIEW
The Seven Steps to Administrative Law Wisdom
The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of
Delegated Power
the Exercise of Delegated Power
1. To whom is the power
1. Who exercises the control?
delegated?
2. What procedure must be
2. What is the nature of the power
followed in seeking to control the
delegated?
exercise of delegated power?
3. How is the power to be
3. On what grounds is control
exercised?
exercised?
4. What relief can be granted?
Power
Diagram
Flowchart:
Procedural Review
Federal
Common
Law
Bill of
Rights
Ontario
Charter
SPPA
CML 2312: Administrative Law (Forcese)
Common
Law
REVIEW
The Seven Steps to Administrative Law Wisdom
The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of
Delegated Power
the Exercise of Delegated Power
1. To whom is the power
1. Who exercises the control?
delegated?
2. What procedure must be
2. What is the nature of the power
followed in seeking to control the
delegated?
exercise of delegated power?
3. How is the power to be
3. On what grounds is control
exercised?
exercised?
4. What relief can be granted?
Flowchart: Procedural Review
Federal
Common
Law
Bill of
Rights
Ontario
Charter
SPPA
Triggers:
3-prong
Leg. Exp.
Exceptions: Leg. decisions
CML 2312: Administrative Law (Forcese)
Common
Law
REVIEW
The Seven Steps to Administrative Law Wisdom
The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of
Delegated Power
the Exercise of Delegated Power
1. To whom is the power
1. Who exercises the control?
delegated?
2. What procedure must be
2. What is the nature of the power
followed in seeking to control the
delegated?
exercise of delegated power?
3. How is the power to be
3. On what grounds is control
exercised?
exercised?
4. What relief can be granted?
Flowchart: Procedural Review
Federal
Common
Law
Bill of
Rights
Ontario
Charter
SPPA
Common
Law
Content::
Audi
Right to be heard
Nemo
Right to unbiased delegate
CML 2312: Administrative Law (Forcese)
REVIEW
The Seven Steps to Administrative Law Wisdom
The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of
Delegated Power
the Exercise of Delegated Power
1. To whom is the power
1. Who exercises the control?
delegated?
2. What procedure must be
2. What is the nature of the power
followed in seeking to control the
delegated?
exercise of delegated power?
3. How is the power to be
3. On what grounds is control
exercised?
exercised?
4. What relief can be granted?
Flowchart: Procedural Review
Federal
Common
Law
Bill of
Rights
Ontario
Charter
SPPA
Trigger
Section 7: deprivation of
life, liberty or security
of the person
CML 2312: Administrative Law (Forcese)
Common
Law
REVIEW
The Seven Steps to Administrative Law Wisdom
The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of
Delegated Power
the Exercise of Delegated Power
1. To whom is the power
1. Who exercises the control?
delegated?
2. What procedure must be
2. What is the nature of the power
followed in seeking to control the
delegated?
exercise of delegated power?
3. How is the power to be
3. On what grounds is control
exercised?
exercised?
4. What relief can be granted?
Flowchart: Procedural Review
Federal
Common
Law
Bill of
Rights
Ontario
Charter
SPPA
Content
At minimum, fundamental
justice means common law
procedural guarantees
CML 2312: Administrative Law (Forcese)
Common
Law
REVIEW
The Seven Steps to Administrative Law Wisdom
The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of
Delegated Power
the Exercise of Delegated Power
1. To whom is the power
1. Who exercises the control?
delegated?
2. What procedure must be
2. What is the nature of the power
followed in seeking to control the
delegated?
exercise of delegated power?
3. How is the power to be
3. On what grounds is control
exercised?
exercised?
4. What relief can be granted?
Flowchart: Procedural Review
Federal
Common
Law
Bill of
Rights
Ontario
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)
REVIEW
The Seven Steps to Administrative Law Wisdom
The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of
Delegated Power
the Exercise of Delegated Power
1. To whom is the power
1. Who exercises the control?
delegated?
2. What procedure must be
2. What is the nature of the power
followed in seeking to control the
delegated?
exercise of delegated power?
3. How is the power to be
3. On what grounds is control
exercised?
exercised?
4. What relief can be granted?
Flowchart: Procedural Review
Federal
Common
Law
Bill of
Rights
Ontario
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)
REVIEW
The Seven Steps to Administrative Law Wisdom
The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of
Delegated Power
the Exercise of Delegated Power
1. To whom is the power
1. Who exercises the control?
delegated?
2. What procedure must be
2. What is the nature of the power
followed in seeking to control the
delegated?
exercise of delegated power?
3. How is the power to be
3. On what grounds is control
exercised?
exercised?
4. What relief can be granted?
Flowchart: Procedural Review
Federal
Common
Law
Bill of
Rights
Ontario
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)
REVIEW
The Seven Steps to Administrative Law Wisdom
The 3 Question Approach to the Exercise of The 4 Question Approach to the Control of
Delegated Power
the Exercise of Delegated Power
1. To whom is the power
1. Who exercises the control?
delegated?
2. What procedure must be
2. What is the nature of the power
followed in seeking to control the
delegated?
exercise of delegated power?
3. How is the power to be
3. On what grounds is control
exercised?
exercised?
4. What relief can be granted?
Power
Diagram
Flowchart:
Procedural Review
Federal
Common
Law
Bill of
Rights
Ontario
Charter
SPPA
Trigger
all tribunals exercising
statutory powers of decision
required to hold a hearing
CML 2312: Administrative Law (Forcese)
Common
Law
REVIEW
The Seven Steps to Administrative Law Wisdom
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
Flowchart:
Review Process
Control?
Appeal
Right of appeal must
exist in statute. Statute
will set out grounds,
remedies, etc.
REVIEW
The Seven Steps to Administrative Law Wisdom
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
Flowchart:
Review Process
Control?
No appeal
Appeal
Appeal to admin
body exhausted/
no adequate alternative
appeal
Judicial Review
REVIEW
The Seven Steps to Administrative Law Wisdom
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
Flowchart:
Review Process
Control?
Judicial Review
Federal
Ontario
JRPA
REVIEW
The Seven Steps to Administrative Law Wisdom
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
Flowchart:
Review Process
Control?
Judicial Review
Federal
FCA
Ontario
REVIEW
The Seven Steps to Administrative Law Wisdom
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
Flowchart:
Review Process
Control?
Judicial Review
Ontario
Federal
(see FCA)
Grounds
Errors where no deference
(procedural entitlements)
Errors where deference
REVIEW
The Seven Steps to Administrative Law Wisdom
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
Flowchart:
Review Process
Grounds
Errors where no deference
(procedural entitlements)
Errors of law
Errors where deference
Abuse of discretion
Error of fact
REVIEW
The Seven Steps to Administrative Law Wisdom
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
Flowchart:
Review Process
Grounds
Errors where no deference
(procedural entitlements)
Errors of law
Errors where deference
Abuse of discretion
Standard of Review Analysis
Error of fact
REVIEW
The Seven Steps to Administrative Law Wisdom
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
Flowchart:
Review Process
Control?
Judicial Review
Federal
Ontario
Common Law
Prerogative Writs
Ordinary remedies
REVIEW
The Seven Steps to Administrative Law Wisdom
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
Flowchart:
Review Process
Control?
Judicial Review
Federal
FCA, s.18 gives power
over most common law remedies;
However, FCC practice generally
to cite s.18.1(3)
Ontario
REVIEW
The Seven Steps to Administrative Law Wisdom