CANADIAN LAW AND

LEGAL INSTITUTIONS
WEEK 10 – ADMINISTRATIVE LAW

CRIM 135 F2023

CAMIA WEAVER
WHAT IS ADMINISTRATIVE LAW?
TO WHAT DOES IT APPLY?
Administrative law is judicial oversight of government administrative
decisions
Purpose: To ensure that these decisions are made in a way that is
procedurally fair and substantively appropriate…

What matters most is fundamental fairness, depending on the

mandate and context of the tribunal or decision-maker
THE NATURE OF ADMINISTRATIVE LAW

• Administrative law is a form of public law – why?

• It concerns the relationship between the government and the individual,
and the duty of government administration (i.e. governments at all levels)
to act fairly

• Administrative law is not created by statute or regulations, but rather by

• common law: the law created by the courts
• Constitutional law: in the application of the Charter of Rights and
Freedoms (which is a constitutional document)
 DELEGATION OF AUTHORITY

What is the highest level of law in Canada?

The Constitution

To whom does the Constitution give power to make laws (statutes and regulations)?
Federal and Provincial governments

How is that power divided – i.e. what determines which level of government can
make a law in relation to a particular topic?
Sections 91 & 92 of the Constitution
DELEGATION OF AUTHORITY
• Both federal and provincial governments have the power to delegate decision making
powers to administrative bodies
• Why?
1) Parliament/legislatures cannot deal with absolutely every aspect of governing
2) While governments make laws based on broad principles, the details and day-to-day
decisions dealing with changing circumstances are left to the administrative level
3) Subject matter expertise is required for dealing with the technical details

Administrative bodies apply the laws that governments create, but must be
independent from government and must make their decisions free from any influence
or bias
WHAT POWERS DO ADMINISTRATIVE BODIES
HAVE?
The powers depend on what the government has given them power to do/decide.
There are basically three types of decision-making powers:
 Purely administrative
 Quasi-judicial
 Legislative
Some bodies may have more than one, or “overlapping” powers, depending on the decision it
is making
Example: municipal council mainly makes legislative decisions, but may make a decision
which could substantially affect an individual’s rights in which case it is acting both quasi-
judicially and legislatively
1. PURELY ADMINISTRATIVE
Mainly a procedural power
 rules and requirements for decisions are specified
 little if any independent decision-making involved
Examples:
fishing licence, driver’s licence, marriage licence, business licence, etc.

Decisions made according to the rules, regulations, policy of licencing process

the person issuing the licence has no independent power to over-ride

Judicial review is rare’ only if the rules, regulations, and policies were not followed
2.QUASI-JUDICIAL

Usually involves a tribunal (sometimes a single decision-maker)

by hearing and/or written submissions
Examples: Human Rights Tribunals, Parole Board, Immigration and Refugee
Board
greatest potential for affecting the rights of individuals
independent decision making power to assess and weigh evidence
must meet a standard of fairness
3. LEGISLATIVE

Power to make regulations in the areas where they have expertise

Examples:
Municipal Councils, Canadian Radio and Television Council,
Labour Relations Boards, etc.

These decisions may affect rights in a bigger sense, can actually make the
regulations that affect a whole industry and/or class of persons.
IS THE TYPE OF TRIBUNAL IMPORTANT?

The type of tribunal and the type of decisions it makes provide context which determines
whether judicial oversight is appropriate

Key issues:
what obligations does it have to those who are subject to the decision?
to what extent does the decision involve issues which are discretionary?

Some enacting legislation forbids a right of appeal, but courts can always review a
tribunal’s decision if there are discretionary powers in deciding issues which affect rights
REVIEWABLE ISSUES
WHAT ISSUES CAN A REVIEWING COURT
ADDRESS?

TECHNICAL DEFECTS ABUSE OF DISCRETION PROCEDURAL

FAIRNESS
 TECHNICAL DEFECTS

Ultra vires (Acting beyond its powers):

Did the body:
- Act beyond the powers given to it by legislation (expertise, jurisdiction)?
- Appoint members without required qualifications?
- Fail to follow all necessary procedures?
- Make decisions without the necessary quorum (number of members required
for decision)?
 ABUSE OF DISCRETION

• Decisions must be made based on relevant considerations

• Discretion must be exercised within the meaning of the enabling
statute
• If a decision maker relies on irrelevant information or fails to consider
relevant information, courts may review the decision
 PROCEDURAL FAIRNESS
JUSTICE MUST NOT ONLY BE DONE BUT BE SEEN TO BE DONE

Some statutes that grant power will specify the procedure to be followed; if so, these rule
Where no procedure specified, the common law principles of natural justice apply to
ensure fair treatment.
Natural justice has two basic objectives:
a) audi alteram partem – “hear both sides” to ensure everyone whose interests are at
risk is entitled to participate before a decision is made
b) nemo judex - there must be no bias or appearance of bias; every decision made is
impartial
RE SHEEHAN AND CRIMINAL INJURIES COMPENSATION BOARD
(1973)

Facts: Sheehan was an inmate of a federal penitentiary. On one occasion he was assaulted and
injured by another inmate. On another occasion during a riot he was taken from his cell by
other inmates, bound to a chair and assaulted, resulting in serious injuries. He applied for
compensation from the CICB for both assaults and was denied.

Decision: The Board considered three circumstances in making their decision

a) he put himself in the situation by having committed/been convicted of a criminal
offence;
b) he was in a federal prison where the province has no control;

c) he had not sought compensation from anywhere else.

 RE SHEEHAN: DECISION

The Divisional Court concluded that the Compensation Board had considered
three irrelevant circumstances in making its discretionary decision.

The Court of Appeal however held that the Court is not authorized to review the
correctness of a discretionary decision made within the Board’s authority and
may not determine for itself whether circumstances were relevant or not when
the Board is acting in good faith.

The Supreme Court of Canada dismissed an appeal of this decision.

 EXPANDING APPLICATION OF THE
DOCTRINE OF FAIRNESS
Charter s. 7 Everyone has the right to life, liberty, and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice (emphasis added)

What are “the principles of fundamental justice”?

• not defined in the Charter or in case law
• different than “natural justice”

Fundamental justice includes more than procedural injustices and more than
natural justice, but remains undefined and unlimited
 SOME ESTABLISHED PRINCIPLES OF
FUNDAMENTAL JUSTICE
• Arbitrariness - the state cannot limit an individual's rights where "it bears no relation to, or is
inconsistent with, the objective that lies behind [it]” Rodriguez v British Columbia (Attorney
General) (SCC)[1993]
• Vagueness - requires laws to have a clear and understandable interpretation so as to properly
define the rule or offence
• Overbreadth - the means used to achieve a societal purpose or objective must be reasonably
necessary
• Right to Silence - Statements of the accused cannot be achieved through police trickery and
silence cannot be used to make any inference of guilt.
• Minimum Level of Mens Rea - criminal offences that have sentences involving incarceration
(imprisonment) must have a mens rea element
• Right to Full Answer and Defence - Anyone accused of a criminal charge has the right to know
the case against them and put forward a defence
STANDARD OF REVIEW –
THE SCC AND RECENT CHANGES TO THE
LAW
Historically the leading case on the standard of review was the SCC decision in
Dunsmuir v. New Brunswick (2008)

Dunsmuir provided a framework to help courts determine what

standard should be used in judicial review of a particular type of
administrative decision:

the standard of reasonableness, or

the standard of correctness
STANDARD OF REASONABLENESS

Reasonableness:
existence of justification,
transparency,
intelligibility in the decision-making process and that
the decision falls within a range of possible acceptable outcomes any of which could be
defended on the facts and law

Reasonableness = there is a clear and rational analysis in reaching the decision

It doesn’t have to be the only right decision, it just has to be a defensible decision
Recognizes a range of reasonableness, and if the decision is within the range, the court will not
intervene
STANDARD OF CORRECTNESS

Standard of correctness, the reviewing court will undertake

a much more specific analysis of
the evidence,
the law,
the process of decision-making, and
the constitutionality of the decision
to determine whether the decision was not only a reasonable one but the correct one, in
effect overseeing the entire decision-making process to determine the correct decision in
the circumstances.
RECENT SUPREME COURT OF CANADA
CHANGES
Recently the Supreme Court of Canada has clarified the law for judicial review of
administrative decisions.
Previously Dunsmuir v. New Brunswick (2008), but the framework was too complex and
confusing and did not provide sufficient guidance to determine the correct standard of
review to apply in a particular case.

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (and its
companion decision Bell Canada v. Canada (Attorney General), 2019 SCC 66) provided
the Court the opportunity to clarify the framework for judicial review in two important
areas:
1. the standard of review
2. proper application of the reasonableness standard
THE VAVILOV CASE
Facts: Alexander Vavilov was born in Toronto in 1994. At the time his parents were posing as
Canadians under false names, but in reality were foreign nationals working for the Russian
intelligence service. Alexander knew nothing of this; he believed himself to be a Canadian by
birth, he lived and identified as a Canadian and held a Canadian passport. In 2010 his parents
were arrested in the US and charged with espionage; they pleaded guilty and were sent to
Russia. In 2012, Alexander was issued a certificate of Canadian citizenship but in 2014 the
Canadian Registrar of Citizenship cancelled his certificate based on her interpretation that he
was a child of “employees or representatives” of Russia and therefore had never been entitled
to Canadian citizenship.
The Federal Court dismissed Vavilov’s application for judicial review.
The Federal Court of Appeal allowed his appeal and quashed the Registrar’s decision because it
was unreasonable.
The Minister of Citizenship and Immigration appealed to the Supreme Court of Canada – appeal
dismissed
THE VAVILOV DECISION AND IMPACT ON
ADMINISTRATIVE LAW
The decision creates new precedent.
The real impact of the decision:
Courts are to presume that the standard for their judicial review of a
decision is “reasonableness” rather than “correctness” for the most part
i.e. it is not whether the decision would have been made differently by
the court, but was it within the terms of the act and regulations and
(within the authority given) and not unreasonable?
There are exceptions where this presumption may be overcome (rebutted),
in the following situations:
REBUTTING THE PRESUMPTION OF
“REASONABLENESS” STANDARD

The presumption in favour of a reasonableness standard can be rebutted* in two ways:

1. Where the statute indicates a different standard by either:
a) including a right of appeal importing an appellate standard : whether the decision and the
decision-making process** are correct, or
b) by specifying another standard of review.
2. Where the rule of law requires the standard of correctness in cases involving:
a) Constitutional questions
b) General questions of law of central importance to the legal system as a whole (issues requiring
uniform and consistent answers for all legal matters)
c) Questions related to the jurisdictional boundaries between two or more administrative bodies
CONCLUSION

Administrative law is based on a relatively simple concept:

government agencies must treat people fairly.
The principles surrounding what is fair, and how much the courts should
intervene in ensuring fairness are more complex.
The concepts of natural justice and fundamental fairness are not written in
stone and while there are basic accepted principles, these principles are subject
to different interpretation and application in different circumstances.
Administrative decisions are subject to different levels of oversight by the courts
depending on the statutory power given to administrative bodies, how the
administrative decisions affect individuals, and the types of legal issues involved.