(a) A procedural fairness (or more generally, procedural expectations that administrative decision-makers must meet);(b) substantive constraints (or more generally the sorts of substantive errors administrative decision-makers must avoid); and(c) challenging administrative decisions and remedies on judicial review (or more generally, the relief available to a person who wishes to challenge an administrative decision and the procedure to befollowed in seeking this relief).
2. Sources of Procedural Obligations(a)
(i.e. statute sets out the procedural expectations). See Sngh(b)
(i.e. regulations and rules) – note that there is a risk that persons makingthe rules and regulations don’t meet expectations or wishes of legislature. There are mechanisms of accountability and scrutiny to ensure this doesn’t happen:(i)Legislative Scrutiny - - regulations must be approved by legislature once approved(ii)Public Consultation when drafting regs/rules(iii)Judicial review – e.g. compliance with Charter or other constitutional instruments,ultra vires, compliance with common law (in absence of express language to thecontrary).(c)
Policies and Guidelines
– “soft law” set out by the relevant administrative decisionmaker.(d)
– set out coming procedural standards. E.g. Alberta AdministrativeProcedures and Jurisdiction Act or BC Administrative Tribunals Act(e)
– a party affected by the administrative decisionmaker is entitled to be heard by thatadministrative decisionmaker in an impartial and independent hearing. Derived from rules of “natural justice” which imposed on tribunals exercising judicial or quasi-judicial functions, trial-type procedures. Concepts of
audi alteram partem
(the decision maker must “hear the other side”) and
nemo judex in sua causa
(decisionmaker must not be a “judge in his own cause”).
Today, it applies toa much broader spectrum of decisions.(i)Cooper vs Board of Works (1863) – Builder had to give 7 days notice of intention to build under the statute and if not, the Board of Works had the right to tear down his building. Court ruled that he needed opportunity to be heard – particularly as hisright was property right.(ii)After this, English Courts willingness to impose hearing requirements ondecisionmakers became contingent on the nature of decision making power – judicialor quasi-judicial vs administrative decisions. This became untenable and then in1964-1970 courts started reviewing administrative decisions as well.(iii)Nicolson v. Haldimand-Norfolk Regional Police Commissioner (1979) SCC – Statutesaid that certain procedures must be followed before firing a constable of over 18months. In this case the person had been constable for 15 months and was no procedures were followed – he was discharged without being given an opportunity tomake submissions. Court ruled that just because he wasn’t entitled to the notice andhearing required under statute, that didn’t mean he had no protection at all. He must be treated fairly, not arbitrarily. He should have been told why his services weren’t