19746542
Description
Flashcards by Jean Ramsay, updated more than 1 year ago
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Created by Jean Ramsay
about 5 years ago
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| Question | Answer |
| What are the fundamental principles of administrative law | 1. decision makers who exercise powers granted by statute must stay within their legal jurisdiction 2. decision makers must exercise their judgement in a reasonable manner 3. procedural fairness- right to notice, right to be heard, right to impartial decision maker 4. a person who legislature delegated authority to carry out a function cant delegate it to someone else 5. subordinate legislation must conform to the statute under which it was passed 6. if decision makers violate any of these rules the judiciary can intervene |(judicial review) |
| Administrative law _________ the ___________________ granted by statutes. | governs the exercise of power granted by statutes |
| Official is responsible for making decisions required to give affected individual a hearing before the decision is made | Quasi Judicial Natural Justice |
| T/F: All administrative decisions are subject to natural justice. | False. For example in many administrative hearings you do not have the right to a hearing |
| What do you have the right to if a decision has been made that affected your rights | Procedural fairness is triggered and you have the right to an unbiased decision maker and to be consulted before the final decision is made. |
| You have no right to receive a certain benefit but you have been receiving it for a long time. The government wants to change this. Do you have any rights here? Why? | Yes you have the right to comment before the practice is changed because of legitimate expectations |
| The scope of authority or powers conferred on a government body or official by legislation or common law. | Jurisdiction |
| What is it called when a government body acts outside their jurisdiction? | Ultra Vires |
| Where do government bodies get their jurisdiction from ? | Statutes and common law |
| Whatever additional powers are necessarily incidental to their explicit powers | implied power doctrine |
| every agency is a master of its own process and can create/ follow procedures not provided for in the statute | inherent powers doctrine |
| Decision makers must exercise their power in accordance with _____________ rules of _________________ | Common law rules of procedural fairness |
| Agencies must interpret their power in the context of _________________ | the rules of fairness |
| Decisions made with discretion must be based on the __________________ of the _______________ granting the discretion | intent of the statute granting the discretion |
| 1. must be exercised within jurisdiction 2. decision must be made consistent with the statute 3. must only consider the facts relevant to the statute 4. treat similar cases similarly 5. good faith | rules of discretion |
| What happens when a decision maker rules out options that they are required to consider by law? | they have fettered their discretion |
| What are the limitations on fettering discretion | 1. an official with the power to exercise discretion cannot refuse to exercise it 2. cant refuse to consider relevant information |
| When an official delegates their power to someone else | subdelegation |
| Why cant decision makers subdelegate? | to preserve the quality and fairness of decisions, accountability for the decisions made |
| Under what conditions can legislation be subdelegated | 1. regulations made under statutes by Cabinet or cabinet minister 2. by laws passed by municipalities in both cases the subdelegation must be consistent with the enabling statute |
| Duty of PF if the decision will affect their rights | 1. duty to notify and provide explanation 2. impartial decision maker |
| What are some types of decisions that are subject to the duty to act fairly | Any decision that affects an individual more than it would others ex. issuing permits, eligibility to receive a service, granting or denying a benefit |
| What fairness obligations bind agencies | statutes, common law, Charter, s.35 Constitution Act |
| s. 35 Constitution Act | recognition of Aboriginal rights (treaty rights) affirmed under the constitution duty to consult on anything that might impact Aboriginal land or resources |
| R v Delgamuukw | Aboriginal rights can be infringed on by P or F government but there must be a justification + adequate compensation |
| Summary of the fundamental principles of administrative law | 1. PF and Natural Justice 2. jurisdiction 3. discretion 4. subdelegation 5. validity of subordinate legislation 6. judicial review |
| body of rules and principles that regulate how agencies, boards, and commissions must administer and enforce our laws | administrative law |
| where does administrative law not apply? | private sector |
| any individual corporation entity exercising power granted by legislation or statute is subject to what and give an example | the principles of admin law and example would be a university, hospital or government entity |
| what are the 4 pillars of admin law | 1. jurisdiction 2. reasonable exercise of discretion 3. rules against subdelegation 4. procedural fairness aka natural justice |
| government decision makers are given powers by legislation and must stay within the boundaries of those powers | jurisdiction |
| government decision makers cannot delegate their authority to someone else unless authorized by statute | rules against subdelegation |
| government decision makers must follow fair procedures when making decisions such as the right to an impartial decision maker or the right to be heard | procedural fairness |
| when does a decision maker make a jurisdictional error | 1. if they exceed jurisdiction 2. if they fail to follow procedure 3. if they refuse to make a decision required by statute |
| A decision maker made a decision that denies me the right or entitlement to something. What type of decision is this and what level of PF are they entitled to? | quasi judicial greater PF |
| Low degree of PF= _______________ decision | administrative |
| whenever teh public decision maker makes a decision affecting a persons interests or rights more directly than it affects the rights of the general public the DM has the obligation to notify the person, provide an opportunity to be heard, and provide an unbiased decision | fairness doctrine |
| T/F procedural safeguards are applied evenly regardless of the agency or tribunal. | F. Procedural safeguards are applied differently depending on the agency or tribunal |
| what kinds of decisions dont require as many procedural safeguards | minor administrative decisions, legislative policies that affect large groups |
| When determining whether or not there was PF where do you look for the law? | the legislation |
| How do you determine whether or not there was procedural fairness where do you look for the law? | 1.the legislation 2.the rules of procedure, guidelines and practice directions developed by the agency 3. Statutes of General application like the SPPA 4. court decisions 5. charter |
| SPPA | Statutory Powers Procedure Act |
| PF Factors (5) | 1. nature of the decision 2. nature of the statutory scheme 3. the importance of the decision to the affected person 4. extent of legitimate expectations (government promises that occur outside of legislation) 5. extent of the discretion of the statute |
| where the statute does not provide for an appeal from an administrator's decision the ___________________ may be warranted in making the initial decision | more fairness safeguards |
| right to notice | explanation of the proposed decision, date, time, and location of the hearing, policy basis of decision |
| What is a strategy to win your case in admin law? | say your client wasnt given the right amount of procedural fairness |
| individual impartiality | decision makers must be free from personal bias |
| institutional impartiality | tribunal or agency must not be structured to suggest that its decisions will favour one party over the other |
| anything that draws your attention away from the law or the evidence being presented it called _______ | bias |
| True or False: When a decision maker does not believe there is bias but there is a reasonable apprehension that they might be biased it is improper for them to hear the case. | true |
| the appearance of bias to a reasonable and well informed observer | reasonable apprehension of bias |
| Because of the strong presumption of ___________________ the burden to prove bias is more than a balance of probabilities but less than beyond a reasonable doubt | presumption of judicial integrity |
| any interest including a financial interest incompatible with an individuals function as a tribunal member | conflict of interest |
| list 4 indicators of possible bias | meets with one party without the presence of the other party has a friendship with someone invested in the case persistently favours one party over the other in the hearings has played a part in the case |
| the ability to look at facts and evidence neutrally | impartiality |
| the _______ of a tribunal is a matter of its status | independence |
| in administrative law there is a requirement of ________________________. , with statutory exceptions | requirement of institutional impartiality |
| When will a built in bias be acceptable | under a stat exception. Required by statute and not unconstitutional |
| How do you determine if there is institutional bias | the closeness of the relationship between the agency and the government department affected by its decisions overlapping functions (ex if there isnt a clear definition of roles) appearance of bias |
| How do you raise an allegation of bias? | As early as possible. If you do not raise the issue during the hearing the court will consider you to have waived your right. Meet with the judge and the other party and raise the allegation. Meet off the record and ask the judge to recuse themself. If they dont raise it on the record in the court (prelim motion ) |
| what happens in most cases when an allegation of bias is raised. | the decision maker will stand aside. |
| T or F. Tribunals have the same level of independence as the judicial branch | false |
| Security of tenure financial security control and operation of their courts | constitutional requirements for judicial independence |
| how to determine institutional bias | look at the closeness of the relationship btw the agency or tribunal and the government body affected by its decision and if an agency has multiple functions the extent to which these functions overlap to suggest that emplyees have influence over the others |
| tribunal member is not fixed term. More or less likely to be biased | more likely to be biased. Fixed term employees cant be fired if they make a decision the government doesnt like |
| Part time employee. More or less likely to be biased. | more likely because it is easier to fire them |
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