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Canadian Admin Law Problem Solving Decision Tree

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Craig Forcese

on 27 February 2016

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Transcript of Canadian Admin Law Problem Solving Decision Tree

HOW was the decision made
The decision
Canadian Admin Law Problem Solving Decision Tree
Craig Forcese, Faculty of Law, University of Ottawa

Does party have an right, interest, privilege etc.
at stake in decision?
Is the party's life, liberty or security of the person in jeopardy?
For a federal decision, is life, liberty, security of the person or property at issue or the party's rights or obligations?
Common law procedural fairness
Charter, s.7
Canadian Bill of Rights, s.1(a) or 2(e)
But is it a "legislative" decision?
Is it a broad, policy-based decision?
Is it "rulemaking"?
Then decision is legislative, unless Homex like exception applied
NO procedural entitlement
Procedural Entitlement

Did the decision maker make a
sufficiently emphatic procedural promise?
Right to be heard
(audi alteram)
Right to an unbiased decision maker
What does this mean in practice?
Content of procedural fairness (and fundamental justice) varies in the circumstance: Baker and Suresh
WHAT was the decision made?
APPLY any procedural rules
in the statute
For Ontario admin actors,
does the SPPA apply? If so, then apply those procedural rules in the SPPA.
Was there fact-finding?
Was there an interpretation of the law
(eg, statutory interpretation)?
Did the decision amount to a choice between different possible outcomes?
Look for error
of fact!
Look for error
of law!
Look for things that suggest
abuse of discretion: bad faith, irrelevant considerations,
discrimination, fettering, or just a whole dribble of
other things that suggest something was foul with the
choice made
How do attack? Have to
look to standard of review:
could be correctness, often reasonableness
How to attack? Have to "package"
the error as unreasonable, using the boilerplate
of that concept as developed in Dunsmuir and ilk
How do you tell whether an interpretation of the law will be evaluated on a reasonableness or correctness basis?
1. TYPECAST THE LEGAL DECISION: Characterize the nature of the legal interpretation. Some legal interpretations attract correctness:
Could it be characterized as a "true question of jurisdiction?" Hard to do -- courts hostile
Could it be characterized as a constitutional interpretation? If a decision maker is deciding the constitutional validity of a statutory (or regulatory) provision -- review on correctness
Is the law of central importance to the Canadian legal system and fails on the proximity test below? If so, then correctness. (But central importance is a bit murky as a concept)
2. PROXIMITY TO EXPERTISE CONSIDERATIONS: Look at how "close" the decision maker is to the law.
Is this the law that they apply every day, in relation to which they are the experts and that is central to their function? If yes, standard of review will be reasonableness
3. DYING GASP OF THE PRAGMATIC AND FUNCTIONAL VARIABLES: If you want to bolster your conclusions (or try to displace the conclusion someone is reaching you don't like), invoke para. 64 of Dunsmuir and trot out the old test (and especially the presence or absence of a privative clause) in an effort to sway the standard of review decision.
Doré Heachache
You need to distinguish between two types of scenario:
1. An administrative tribunal is asked to decide whether a given statutory provision is unconstitutional (example: in the course of applying the human rights protection against hate speech, a Human Rights Tribunal is asked to determine whether those provisions are a violation of s.2 of the Charter)
On judicial review, this decision would
be reviewed on a correctness standard: it
is a constitutional question of law
2. An administrative decision maker (making fact-specific determination in the circumstances of their case and exercising their discretion) must decide whether a Charter value should guide that exercise of discretion (example: the Minister exercises his/her discretion to deny repatriation of a Canadian under the International Transfer of Offenders Act or a Minister exercises his or her discretion to deport someone despite the risk of torture)
From Doré, we know that this remains a discretionary decision and so it will be reviewed on a reasonableness threshold and that reasonableness review is taken to replace any need for a s.1 analysis applied to the exercise of discretion
Full transcript