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NCA Administrative Law Notes

NCA Administrative Law Notes

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Published by: lewisnca on Dec 06, 2012
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Administrative Law Notes
STUDY TIPSDecisions of Legislative Nature – PER MICHELLEKrever Commission – PER MICHELLE
Part of the problem is that a lot of you are overthinking Admin. If you look carefully at the sampleexam, you'll notice something that is very apparent in the actual exams administered - that is, there arethree fact patterns and one focuses on procedural administrative law, another on substantiveadministrative law, and a third that will likely include something about bias, charter challenge, or otherwise similar content.Once you are able to identify procedural vs. substantive problems, the rest is easy. When analyzing a procedural question, look at the Baker elements and carefully read the Judge's analysis. Most problems will result in the victim having right to some procedural fairness.When looking at the substantive elements, organize your thoughts carefully - does the person haveany right to due process at all? If so, what level? And after determining what level, focus on how that person's rights should be applied to the fact pattern. There will always be a bit about bias or a charter argument. Find it and use the text book to find out what type of bias it was, speak clearly andconcisely about whether an argument exists, and make a confident conclusion about it.There is a lot of fluff in the text books intended to take up your time. Once you learn what theexaminers are looking for, you can focus on that and ignore the rest of the nonsense. You will realizethat your exam will consist about 80% of the Baker and Dunsmuir elements, and the cases that led upto, or were decided, on the basis of this case law.Canadian law is somewhat archaic in that many of the textbooks and reading materials are publishedevery few years, which is in contrast to American authorities which are published yearly or twiceyearly. This means that a lot of things to do with two standards of reasonableness (hint -only 1 nowexists) are still in the texts and this causes some confusion. Don't waste your time with trying toexplain to the examiner the difference; rather, focus on the IRAC method religiously. I cannot stressorganization and writing style. You could have a strong grasp on the case-law, but if you cannot argueyour position with confidence, you'll fail. I would bet that writing style and organization are the deal breakers with NCA examiners, as your first impression is the only one you'll make. If your English isweak or you are unable to put your thoughts on paper properly, spend a lot of time taking the practiceexams and reviewing the outlines so you know exactly how your answer will flow.Lastly, walk into the test knowing that there are only a few ways that a question can be asked when itcomes to admin law. There will always be a person or entity who was denied a certain benefit or right.There will always be a question on procedural and a question on substantive law.The fact pattern will always be fashioned in a way that it is difficult to determine whether standardof review is correctness or reasonableness because it could go either way, so look closely for astatement or fact that sways you to the correct SoR (remember, choosing the wrong SoR can fail you).And also remember, there will be a question which asks you whether a person or entity has any rightsin law to some type of bias/constitutional challenge.
Learn the different types of bias and apply itcorrectly, and learn the jurisdictional limitations that tribunals must abide by when hearingconstitutional challenges.
Hope that helps. Once you guys stop over-thinking admin law and start focusing on the actualelements of the subject, you'll realize that it's an area of Canadian law that is well developed andrelatively easy to conquer. When I was studying for it, I was overwhelmed because I could notseparate procedure and substantive law properly, but with some time and resources I was able tofigure it out quite well. Steven: The syllabus is extremely frustrating because it does not provide students with any structure.My suggestion would be to break down your outlines into two major categories: Procedural andSubstantive.For each category, ask yourselves (a) whether any procedural/substantive rights exist; (b) at whatlevel? and (c) and whether the victim received enough process or whether more should have beengiven. Again, HEAVILY rely on the Baker analysis for matters of procedural fairness, even step-by-step as outlined by Justice L'Heureux-Dubé, whose analysis is extremely easy to follow. One easyway to identify procedural fairness problem is where there is no "finality" to the issue. Proceduralquestions mostly center around matters of how a certain thing was done, such as how someone wasfired, how a benefit was revoked, or along those lines. Procedural questions usually look at whether a particular person received enough opportunity to challenge a decision or whether the decision was based on sufficient research and opportunity for the victim to be heard, etc.In contrast, substantive questions mainly involve a final decision by a tribunal, and the party involvedis looking to have that overturned by a court. First, ask whether there is any basis for review at all:that is, are there any mistakes in fact or law that are egregious enough for court intervention? If so,what standard of review? Look to the Dunsmuir and supporting cases to determine this.Finally, will the court overturn the decision at all? Analyze the case-law and determine whether theerror was big enough to warrant court intervention. Most substantive issues will be a standard of reasonableness, because most of them are typically errors of fact or mixed fact and law. You willknow when a correctness standard applies when you see matters of law that are highly important tothe legal system as a whole or involve a constitutional question (which is rare.) If anyone has anyspecific questions about admin, let me know. I'm no expert, but I did put a great deal of effort intolearning it at the expense of my other exams, and I'm happy to share my experiences.
Primary questions:(a) The circumstances under which governmental decision-makers are subject to an obligation of  procedural fairness to those affected by their decisions, and, where applicable, the content of thatobligation.(b) The extent to which the substantive decisions of assigned decision-makers are subject to meritsscrutiny by the courts in the name of jurisdiction or other principles of substantive review such aserror of law, error of fact, and abuse of discretion, and especially the standard of review thatreviewing courts bring to bear in exercising that constitutionally guaranteed capacity.(c) The remedial framework within which the superior courts, both federally and provincially,exercise their review powers.(d) The bases upon which the courts will not only exercise direct powers of review but also providemonetary compensation for wrongful administrative action.Topics:
(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).
Procedural Fairness
2. Sources of Procedural Obligations(a)
 Enabling Legislation
(i.e. statute sets out the procedural expectations). See Sngh(b)
Sub-ordinate Legislation
(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)
 Procedural Statutes
– set out coming procedural standards. E.g. Alberta AdministrativeProcedures and Jurisdiction Act or BC Administrative Tribunals Act(e)
Common Law
– 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

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