Custom «Canadian Administrative Law» Essay Paper

Introduction

Considering the case of Roncarelli v. Duplessis which happened about 50years ago and the current time, questions that come up include: with the increase of places which sell liquor today, how are the owners protected from public officials and acts; what are the rules and laws that govern their operation excluding their religious denomination; what administrative procedures are there to ensure every citizen is treated in a fair way; what are the constitutional limits that public officials can exercise over the citizens; what are the judicial remedies that can be sought; how efficient and effective are the court systems in the country in giving compensation or a fair hearing to its citizens

The administrative law is normally a branch of public law. The others are constitutional and criminal law. Administrative law regulates the operations of the government. Unlike the  Judicial authority, administrative law gives authority to “create rules and regulations based on the statutes that legislative authorities put into effect. These bodies also have the power to grant licenses and permits, begin investigations and provide remedies to complaints, oversee the conduct of the business of government and issue orders to parties to comply with certain rules or laws”( Rigdon,2010, par. 4) . It applies to Cabinet, ministers, departments of the government, municipal councils or corporations and administrative agencies set up by government to carry out the various government functions. It ensures that government activities are authorized by parliament or any provincial legislatures and that the laws are implemented and administered reasonably and fairly. It deals with the decision making of the various administrative units of the government that are usually a part of a regulatory scheme and covers sectors like transport, immigration, broadcasting, taxation, international trade and manufacturing. It is primarily concerned with substantive and jurisdictional limits on the mentioned government instruments, their procedural operations and the structures existing to make sure the rule of law is followed when decisions are made.

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This paper looks at the principles of administrative law, the rules, limits and remedies and how these can be applied in the Roncarelli v. Duplessis example if the same situation arose today.

Constitutional aspect of administrative law

The residential tenancies act provided by the constitution act, 1867 gives the jurisdiction of superior courts and this helps in determining the extent to which the administrative bodies encroach upon their jurisdiction.

Baker approach

The decisions made by administrative agencies sometimes are “unreasonable” hence the need to have guided principles that ensure every citizen is treated fairly. In Roncarelli v. Duplessis, the decision made by the Quebec Liquor Commission in revoking his license was unreasonable and illegal. The case of Baker v Canada (Ministry of Citizenship and Immigration), clarified the fundamental principles of administrative law which are:

• Fairness in the procedures
• Standard of review.

Remedies of administrative law 1

Several different types of remedies can be administered if the person at risk (Roncarelli) contests the tribunals’ decision. These are:

Novel remedies

The legislation of human rights has empowered tribunals in having broad remedial powers. The tribunals use systematic remedies in order to resolve discrimination issues in institutions or workplaces. Through use of such remedies and effective monitoring of their implementation, innovative solutions are being crafted and ordered by human rights tribunals in order to change workplaces using affirmative measures in order to eradicate workplace discrimination (Veena & Wente, 2010, p.1).

In the case of McKinnon v. Ontario, Mr. McKinnon, a corrections officer filed a complaint alleging that he worked in an environment that was ‘poisoned’ having been subjected to racist behaviours by his bosses as well as his co-workers.

Discrimination was evident in the case of Roncarelli as he was discriminated against based on his religious beliefs. The commission failed in its remedial action because it was the one meant to protect the citizen not to afflict him.

Court of competent jurisdiction

The jurisdiction concept emphasizes the need of the tribunals to act within their delegated powers. The tribunals exceed their jurisdiction if they take action without the necessary legal authority (Swaigen, 2010). This may cause the courts to reverse or quash their action. For example, the case of R v. Conway, who was detained in mental health facilities and breaching his rights under the Canadian Charter of Rights and Freedoms. The questions sort in this case were: whether the board is a court of competent jurisdiction; whether the remedies sought fit into the board’s statutory scheme. In Rocanrelli v. Duplessis, the Supreme Court displayed its competence in jurisdiction after it sided with Roncarelli and awarded him cash for damages caused and declared that Duplessis acted in bad faith and it was outside his authority to do so.

Challenging the tribunals actions

Sometimes, tribunals’ actions can be challenged when a person feels he/she was not given a right to a hearing. In the case of Harelkin v. University of Regina, the student Harelkin was required by university authorities to discontinue studies due to his poor academic performance and was not given a fair hearing by the university council hence the student was forced to challenge their action in the Court of Appeal. In Roncarelli v. Duplessis, Roncarelli challenged the commission’s decision in the court and he was eventually awarded for damages.

Remedies of administrative law 2

Judicial review: Availability

A citizen can challenge or dispute administrative decisions based on the availability of a judicial review. In McDonald v. Anishinabek, McDonald applied for a judicial review and it was granted.

Issue of consistency

In some cases, the issue of inconsistency and conflicting decisions by administrative tribunals may give rise to judicial review as was the case in Domtar v. Quebec. Therefore tribunals must ensure that at all times, they make consistent decisions. In Roncarelli v. Duplessis, both the Supreme Court and the Quebec Court were consistent with their decisions.

Prerogative writs: discretionary nature

 Rules of administrative law 1

Unwritten principle as a constraint

Most of the tribunals’ decisions are usually guided by common-law, constitutional or statutory principles. In rare cases, the tribunals make decisions based on bad faith and damages have to be awarded to the plaintiff. In the Roncarelli v. Duplessis, the unwritten principle was that Duplessis could not revoke Roncarelli’s license despite him being a public official.

Utility of concept

The rule of law, as protected by the Constitution, does not require that Acts ensure a fair civil trial or avoid giving the government advantages e.g. in BC v. Imperial Tobacco, British Columbia government sued tobacco manufacturers to recover costs on health care systems for people suffering from tobacco related illnesses. This was due to the Tobacco Damages and Health Care Costs Recovery Act that had been passed.

Rules of administrative law 2

Constitutional implications

Judicial interpretations

Tribunals and commissions have no jurisdictions to subject Acts to constitutional scrutiny as was in Cooper v. Canada (Human Rights Commission). Therefore, courts are the ones which determine whether tribunals have been granted powers to determine law questions and matters such as the composition and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the expertise of the tribunal have to be taken into account.  These practical considerations, in so far as they reflect the scheme of the enabling statute, provide an insight into the mandate given to the administrative tribunal by the legislature. 

Duty of fairness 1

Modern development

In the common law, the duty of fairness is normally imposed in a number of administrative circumstances for instance, in Nicholson v. Haldimand-Norfolk Regional Police Commissioners. The decisions of the tribunals may be according to the provided acts but principles of natural justice have to be taken into consideration and applied.

Threshold test

The procedural fairness duty applies to disciplinary proceedings in Cardinal v. Kent case,

Limits

The tribunals are not limited to varying orders but they may act, decide, regulate or rule provided their jurisdictional limits are taken into consideration e.g. in Att. Gen. v. Inuit Tapirisat.

Duty of fairness 2

Limits

Sometimes the governments imposes limits on itself to cut down on either budget costs

Independence, impartiality and bias

Definitions

Impartiality is a principle of justice. Decisions should be based on ideal criteria and not prejudice or biasness. Independence is the freedom to make a decision without being influenced by other people. It is made based on one’s opinions and conscience. Bias is a partiality that prevents objective consideration of an issue or situation. It is well established that absent constitutional constraints, the degree of independence required of a particular government decision maker or its enabling statute determines tribunal. The statute must be construed as a whole to determine the degree of independence the legislature intended. Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal’s process to comport with principles of natural justice. However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication (SCC, 2001) e.g. in the case of Ocean port Hotel v. British Columbia where a penalty was imposed on the hotel for not adhering to the liquor control and licensing act.

Independence, impartiality and bias 2

Judicial versus administrative models

Some administrative tribunals’ decisions are based on biasness as in Roncarelli v. Duplessis as compared to judicial courts whose decisions are mostly independent, without bias and impartial.

Institutional biasness

“In Geza v. Canada, The test for reasonable apprehension of bias was enunciated by de Grandpré J. in Committee for Justice and Liberty et al. v. National Energy Board et al. An apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. Impartiality and the appearance thereof, are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. It was not enough for the applicants to demonstrate reasonable grounds for an apprehension of bias. The law is clear that grounds for the apprehension must be substantial: a real likelihood or probability of bias must be demonstrated--mere suspicion is insufficient” (Campbell, 2004).

Unwritten principle

Charter and administrative law 1

Canadian charter of rights and freedom aims at all sections of the government and legislative action and has the procedural guarantees of citizens whose right to freedom, life and security may be at risk. It also prohibits discrimination by providing equality. The Canadian parliament also adopted the Canadian Bill of rights. It supersedes all other federal legislation except when there is a well-defined legislative exception. The general principles of administrative law, for instance the impartiality principle and the right to a hearing, were integrated in this bill.

Charter and administration law 2

Charter requirements and reach

In order for one to truly understand administrative law, two principles have to be put into practice and these are: substantive review and procedural fairness. Sometimes, a citizen may feel that the administrative agency has made a decision that violates the common-law, constitutional or statutory principle yet this affects them. They may then ask a court of law for a revision of the authority’s action. The courts do this over the authority if it exceeds its jurisdiction i.e. if it makes unreasonable decisions or follows unfair and improper procedures.

 Substantive review

The reviewing court shows this deference level to the tribunal’s decision. It considers the content of administration decision makers (ADM’s) decision and decides whether it was incorrect such that it is sent back for it to be reconsidered again. When a court has substantive review powers, it undertakes the review by means of a standard review that dictates the deference amount that the ADM should be given by the court. Determination of the standard of review is a very contextual process and varies based on the ADM type or the matter at hand. In the journal ‘Administrative law section: A Commentary on Council of Canadians with Disabilities v. Via Rail Canada Inc., Ella Forbes Chilibeck states:

 “The degree of deference to be shown to administrative tribunals continues to challenge the courts, particularly as more complex and intertwined issues are brought before specialized administrative tribunals. The courts are now being faced with clarifying the authority of individual administrative bodies to make determinations on matters that questionably fall within their area of expertise. Although this issue was front and centre before the Supreme Court of Canada in 2007, it remains difficult to have any sense of clear direction with regard to the segmentation of tribunal decisions and the appropriate standard of review to be applied”( Swaigen, 2010, P. 12)

The method that is used to determine the standard of review was known as the “the pragmatic and functional approach” or simply “the standard of review analysis” and it determines the quantity of review that the legislature intends to have.

The determination is based on the following factors:

• The absence or presence of a private clause or the right of appeal;
• The legislations purpose and its provision in particular;
• The expertise or capability of tribunal in relation to the reviewing court concerning the issue at hand;
• The question’s nature-whether it is a fact, a law or a combination of both

The above factors are not determinative and they vary based on the circumstance at hand. If deference is intended, reasonableness is used to review the ADM and if there is little or no deference, correctness is used.

Standards of review

These are:

• Reasonableness

This is the deferential standard a court gives to the ADM. If the decision is a law or mixture of law and fact matter or a discretionary decision, the decision is termed unreasonable where it is “not supported by any reasons that can stand up to a somewhat probing examination”( Lemieux,2002, P. 1)

• Correctness

It is the least deference a court gives the ADM. The court would not give the deference and it will judge the decision on the basis of its correctness in law. A court’s own opinion may be substituted for that of the ADM i.e. a court is allowed to substitute its decision to the earlier decision made by the ADM.

• Patent unreasonableness

This was the highest level of deference a court could give to an ADM. Where the reviewing court has little or no expertise, then it is left for the ADM. The court intervenes if the decision made by the ADM is unjust or it was not based on accurate and relevant facts and for it to be given, it meant that a decision was so egregious. This set a high standard, which was almost impossible to meet thus the use of only correctness and unreasonableness.

Jurisdiction

The jurisdiction concept emphasizes the need of the tribunals to act within their delegated powers.  The tribunals exceed their jurisdiction if they take action without the necessary legal authority (Swaigen, 2010). This may cause the courts to reverse or quash their action. The courts go through, interpret the enabling legislation, and decide whether the action proposed by the tribunal is ok or not.  In some instances, the power given to the authorities is bound by express limits that are found in the enabling legislation.

Jurisdiction does not deal with the merits of the government officials decisions i.e. courts do not intervene with regards to the government conduct, they merely intervene when power is abused or to ensure the correct exercising of power(Mullan,2001).

Grounds for appeal or judicial review

A citizen can challenge or dispute administrative decisions based on the availability of a judicial review or an appeal and his or her status as he appears before the court. Appeal rights are normally provided by legislation. In order to seek judicial review in the past, one had to use “prerogative” methods and each had its legal requirements. Nowadays, statutory reforms have made it easy for these procedures to be put into a single remedy of judicial review that encompasses all the historical remedies while providing courts discretion of not intervening in the administrative activity. Legislation is normally looked at to determine whether it is federal or provincial. If provincial, superior courts in the provinces grant the remedies when the provincial administrative action is questioned or challenged while those of a federal administrative agency are done by the Federal Court of Canada. Courts deny applications for judicial review if alternative remedies or procedures are available. Under section 2(5) of the Judicial Review Procedure Act, however, a court still grants relief (Fox, 2010).

Secondly, the ability of a citizen to obtain judicial review depends on the status of the individual. In some cases, the individual is affected by a certain decision for instance the termination of pension, but this does not cause a problem while in other cases, individuals may seek broader or wider public interest especially for those challenging the legislations’ constitutionality. Courts permit such individuals to proceed with their judicial review so long as they show a serious doubt existing about the legislation validity and there is no other reasonable means of bringing the issue to the courts attention. Sometimes, a citizen’s remedy can be restricted. In some instances, a relief will be granted by the court or it will send back the matter to the agency for an accurate interpretation of a statute or the relevant facts. Only in rare cases are damages awarded for example when an administrative action was done in bad faith. In Roncarelli v. Duplessis, the premier of Quebec was held liable by the Supreme Court of Canada for cancelling a liquor license because of not approving the religious beliefs and activities of the license holder.

Sometimes, courts do not possess all the understanding and experience that is required to make the final decision. This occurs often in fields requiring expertise, for example labor relations, urban planning, security, human rights, nuclear energy and health. This makes the decision of the ADM or the tribunal not to be reviewed or appealed to the court. These restrictions do not prevent the courts from reviewing the tribunals’ decision in case of excess jurisdiction thus the Supreme Court of Canada states that the tribunal has acted outside its jurisdiction since it has reached a patently unreasonable decision. The courts, therefore, tend not to interfere and leave the tribunals to make the decisions (Chilibeck, 2008).

5.0 Conclusion

This paper has highlighted some of the administrative laws and how they are administered in Canada. Canadian courts are actually well equipped so that they can exercise control of the administrative actions. The courts are given the mandate to intervene to grant adequate and effective remedies to its citizens where illegal acts have been committed. There has been a development of the principles of administrative law and these are updated from time to time to take into account any of the changes in society and any changes in the public domain or authorities. High standards of fairness can present efficiency problems though there is a demand of it where individuals’ and citizens’ rights are concerned and affected. In addition, it presents quite a challenge for administrative bodies since it is not subjected to deference by anyone.

Administrative laws govern the operation of the government are not open to review as compared to civil and criminal law. This is not only applicable in Canada but in most nations around the world. It applies to Cabinet, ministers, departments of the government, municipal councils or corporations and administrative agencies set up by government to carry out the various government functions. It ensures that government performances are endorsed by any provincial legislatures or parliament and that the laws are implemented and administered reasonably and fairly. It deals with the decision making of the various administrative units of the government that are usually a part of a regulatory scheme and covers sectors like transport, immigration, broadcasting, taxation, international trade and manufacturing. It is principally concerned with jurisdictional limits and substantive on the mentioned government instruments, their bureaucratic operations and the organizations existing to make sure the rule of law is followed when resolutions are made.