Keith Mack
Administrative law in Canada is a complex area of law, and answering problem questions accurately requires a good understanding of the subject. The Canadian Administrative Law Answer Framework is a designated framework for writing NCA exams, which has been used successfully by several candidates. This framework includes the S.T.T.C. analysis, issue spotting aids, and how to answer questions relating to aboriginals, among other things. While there is no one way to answer a question, it is important to provide logical reasoning for your conclusions and to be able to separate immaterial from material facts. Sample answers can be a useful tool to help prepare for writing answers in exams, but they should not be relied upon as the only method of preparation.
| Characteristics | Values |
|---|---|
| Administrative Character | The decision constitutes the application of law to a specific situation |
| Decision-Making Process | Parliamentary control, requirement for public consultation, provision for merits review |
| Remedies | Remedies under CL, Equity, and Statute; Discretion |
| Analysis Framework | S.T.T.C. model, issue spotting, correctness review, reasonableness review, standard of review (Vavilov model) |
| Fact-Spotting | Identifying material facts and issues, applying rules to facts |
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Administrative character
When answering administrative law problem questions in Canada, it is important to understand the administrative character of the law. This refers to the unique features of administrative law that distinguish it from other areas of law, such as criminal or civil law. Administrative law in Canada deals with the decisions and actions of government agencies and bodies, which are often given a wide degree of discretion in carrying out their duties.
The administrative character of Canadian administrative law can be understood through several key features. Firstly, administrative law concerns the exercise of public power by administrative decision-makers. These decision-makers can include government ministers, tribunals, regulatory agencies, and other public bodies. They are typically empowered by legislation to make decisions or carry out functions on behalf of the state.
Another aspect of the administrative character is the presence of procedural fairness and natural justice. Administrative decision-makers are required to act fairly and justly in their dealings with individuals and organizations. This includes adhering to principles such as avoiding bias, providing a fair hearing, and ensuring transparency and accountability in their decision-making processes.
In addition, the substantive content of administrative law often involves interpreting and applying statutory powers and duties. Administrative decision-makers must exercise their discretion within the limits set by the legislation that grants them their powers. This requires an understanding of the relevant statutes, regulations, and delegated legislation that govern the specific administrative context.
Furthermore, the remedies available in administrative law reflect its administrative character. When individuals or organizations are negatively affected by the decisions of administrative bodies, they may seek remedies such as judicial review or statutory appeals. These remedies aim to hold administrative decision-makers accountable, ensure legality, and provide relief to those impacted by improper or unfair administrative actions.
Understanding the administrative character of Canadian administrative law is crucial when tackling problem questions. It provides a framework for analyzing specific legal issues, identifying the relevant administrative decision-makers, considering applicable procedures and statutory frameworks, and determining appropriate remedies. By recognizing the unique features of administrative law, individuals can effectively apply legal principles and resolve complex issues within this field of law.
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Remedies
Administrative law in Canada, as in other common law countries, is centred around judicial review doctrine. Citizens can challenge administrative decisions in court depending on the availability of an appeal or judicial review and their status. The superior courts in each province are responsible for granting remedies where provincial administrative action is challenged. The Federal Court of Canada reviews the decisions or actions of a federal administrative agency.
There is now a single remedy of "judicial review", which encompasses all historical remedies and gives courts the discretion not to intervene in administrative activity. The scope of such appeals is defined by the terms of the enabling statute. The courts may exercise discretion to grant judicial review only where the right to appeal does not provide an adequate alternative remedy.
Procedural fairness depends on the nature of the power being exercised, the affected party, the results of the intended action, and the practicality of time-consuming procedures. In serious cases affecting individuals, such as revoking a medical license, court procedures are imposed. In other cases, such as the termination of a lease, courts have held that there is only a "duty to act fairly", which can be satisfied by informing the tenant of the complaints and providing a chance to remedy them.
Administrative tribunals must be free from the appearance of bias, with stringent requirements for procedural fairness and independence. Once a court has determined bias, the decision in question must be void. Courts can apply a standard of reasonableness to discretionary decision-making, with certain matters always warranting a correctness standard, such as questions of constitutional law and division of powers.
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Merits review
In Canada, the superior courts in each province are responsible for reviewing provincial administrative actions. The Federal Court of Canada reviews decisions or actions of a federal administrative agency. The availability of an appeal or judicial review and the status of the individual who comes before the court determine a citizen's ability to challenge administrative decisions in court.
Judicial review can be of any administrative decision. In the past, judicial review involved historical "prerogative" remedies, each with its own technical legal requirements. Today, in most provinces, statutory reforms have simplified these procedures. There is now a single remedy of "judicial review," which gives courts the discretion not to intervene in administrative activity.
When reviewing questions of fact or mixed fact and law, the court applies the standard of "palpable and overriding error." The court may also perform a substantive review, formally known as a judicial review, where it considers the merits of an administrative decision and determines if the decision is so defective that it should be remitted for reconsideration. The court must refrain from deciding the issue itself and consider only whether the decision made by the administrative decision-maker, including its rationale and outcome, was unreasonable.
A decision may be deemed unreasonable when examined against contextual considerations such as the governing statutory scheme, other relevant statutory or common law, the principles of statutory interpretation, the evidence before the decision-maker, and the potential impact of the decision on the individual. The reasonableness of a decision may be jeopardized when the decision-maker has fundamentally misapprehended or failed to account for the evidence before them.
Administrative tribunals must be free from the appearance of bias, which is derived from the natural justice principle of nemo judex in sua causa, or the right to be judged impartially.
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Judicial review
The Canadian federal court system consists of one Federal Court and one Federal Court of Appeal, which hears cases on federal matters for all the provinces. All other administrative bodies' decisions are reviewable in the provincial courts. Both the provincial and federal courts hear applications for judicial review. The Federal Court hears most applications from decision-makers who derive their powers from federal statutes and orders.
The standard of review is the degree of scrutiny applied by the courts to administrative action. It exists in two forms: correctness and reasonableness. A review of reasonableness reflects the principle of judicial restraint and is considered robust. The court examines an administrative decision for its transparency, intelligibility, and justification, and assesses whether the decision falls within a range of acceptable outcomes defensible in respect of the facts and the law. The correctness standard, on the other hand, is applied when the courts give less deference to the administrative decision-maker and review the decision in its entirety.
In 2019, the Supreme Court of Canada revised the framework for determining the standard of review in the Vavilov case, which involved the children of Russian spies. The starting presumption is that reasonableness applies unless clear legislative intent or the rule of law requires the standard of correctness. The Supreme Court provided guidance on what constitutes a "reasonable" decision, stating that it should be based on an internally coherent chain of analysis and be reasonable in light of the factual and legal constraints.
In summary, judicial review in Canada serves as a mechanism to hold government actors and administrative bodies accountable to the rule of law. The courts play a crucial role in ensuring that decisions are made within legal boundaries and that the rights of individuals and organizations are protected through robust standards of review.
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Reasonableness review
In Canadian administrative law, reasonableness is the default standard of review that applies to all administrative decisions. This means that a court will look at whether a decision is "reasonable", rather than whether it is "correct". A "reasonable" decision is based on a logical chain of reasoning and makes sense in light of the law and the facts. There can be more than one "reasonable" outcome.
The presumption of reasonableness may be rebutted in two situations: firstly, where legislation indicates that a standard of correctness applies, and secondly, where the rule of law requires that the standard of correctness applies. The second situation is engaged for certain categories of questions, such as constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies.
In a reasonableness review, the court will focus on the decision actually made by the decision-maker, including both the decision-maker's reasoning process and the outcome. The court will consider the evidence before the decision-maker, the facts of which the decision-maker may take notice, the submissions of the parties, the past practices and decisions of the administrative body, and the potential impact of the decision on the individual to whom it applies.
The Supreme Court of Canada has changed how courts look at administrative decisions to make the law clearer and more predictable. Prior to the landmark decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, courts would undertake a highly contextual standard of review analysis. The Supreme Court explicitly did away with this contextual analysis in an effort to streamline and simplify the standard of review framework.
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Frequently asked questions
It is a designated framework for writing the NCA exams, which has been used by several candidates with a high success rate. The framework includes the S.T.T.C. analysis, issue spotting aid, how to answer questions relating to aboriginals, standard of review based on the Vavilov model, conducting a reasonableness review, and correctness review.
In law school, there is no one way to answer a question. You can answer in different ways as long as you provide logical reasoning for your conclusions. Focus on how to analyse a set of facts, separate immaterial from material facts, and spot issues on which the case turns.
Some of the topics covered in the NCA Syllabus include procedural fairness materials, substantive review materials, and challenging administrative decisions.
