Administrative Law
Chapter 3 - the Foundations of
Administrative Law
Application of administrative law
Administrative law applies to Ontario superior courts
when they are reviewing the correctness of
administrative decision making:
a. In terms of the procedures that reviewing courts
must follow in reviewing the actions, decisions, and
orders of an administrative agency.
b. In terms of the remedies that reviewing courts can
provide when tribunals exceed their statutory
authority or exercise their powers in an
unreasonable or unfair manner.
Application of administrative law principles
and statutes
1. You need a statutory power decision-making for
administrative law principles and statutes to apply to
the administrative decision maker in question.
2. Any individual or body exercising a power granted by
statute or regulation attracts the principles of
administrative law.
Example
- The (Ontario) Landlord and Tenant Board exercises a
statutory power of decision under the Residential
Tenancies Act, so administrative law principles and statutes
apply to it.
Evolution of administrative law and
requirement of procedural fairness
1. Rules of fairness in decision-making developed to
include all administrative agency decisions that
affect an individual’s rights, privileges, or
interests (whether or not the agency could be said
to exercising a “court-like judicial function” strictly
affecting individual rights).
Example: doctrine of legitimate expectations
1. Under the rule of legitimate expectations, tribunals
have to follow the procedure that parties
legitimately expect them to follow.
Continued
The principle of procedural fairness now applies to all kinds of
administrative decisions made by ABCs:
1. Agency decisions involving denials of business or liquor
licenses.
2. Where a government administrator decides that a person
doesn’t qualify for a certain social benefit, such as eligibility to
receive a service.
3. Decisions of administrative tribunals (HRTO, landlord and
tenant board, etc.).
4. Agency decisions involving the making of certain
recommendations to government.
5. Agency decisions involving the issuing of government permits.
Parties are now entitled to a minimum degree of
procedural fairness before administrative agencies
• Whenever a government body makes a decision
that affects a person’s interests more substantially
than it affects the general public, that body has two
fairness obligations:
Obligation #1 - a duty to notify the person of the
intended decision and the reasons for it (if the
government decision is unfavourable, the person
must be given an opportunity to challenge it).
Obligation #2 - a duty to provide an impartial
decision maker.
Six (6) fundamental principles of
administrative law
Principle #1 – public bodies who exercise powers granted by
statute must stay within their assigned jurisdiction.
1. Substantive Jurisdiction is defined principally with reference
to the relevant enabling statute.
2. Substantive Jurisdiction must also be defined with reference
to the common law implied powers doctrine, which gives an
administrative body any additional powers that are
necessarily incidental to their explicit statutory powers.
3. Let’s consider the example of the implied powers doctrine
on p. 57 of the course text.
Continued.
4. Tribunals also have the common law
authority to create procedures not provided for
in their statutes to allow them to carry out their
statutory obligations and their statutory
mandate.
5. This common law source of jurisdiction is
known as the inherent powers doctrine (e.g., p.
58).
Declining jurisdiction, following incorrect
procedure, etc.
1. An agency’s failure to make a decision within a
reasonable time, where required to do so under
its statutory mandate, is a jurisdictional error.
2. Following the incorrect procedure which has the
effect of depriving someone of a fair opportunity
to present his case is also a jurisdictional error.
3. A Tribunal’s governing statute is required to be
read in manner that is consistent with
procedural fairness requirements.
Principle #2 – requirement to exercise
discretion in a fair manner
Q.: Why does the law grant public bodies discretion to
choose from a variety of options?
Let’s consider Sara Blake’s answer on p. 59 of the course
text.
Requirement to exercise discretion in a fair manner
• Discretion must be exercised in accordance with the intent
of the agency’s legislation and in accordance with
applications of the law that are most fair or reasonable in
the circumstances.
• Exercises of discretion should never be based on an
official’s own values and beliefs.
More on the principle of discretion
Six Factors that need to be applied for a public official to
apply their discretionary power fairly:
1. The relevant context should be reviewed – but irrelevant
and extraneous factors outside the scope of the agency
statute should not be considered.
2. The principle of stare decisis should be applied – similar
cases should be treated in a similar way unless this would
undermine fair procedures or fairness.
3. Discretion must be exercised in good faith (personal
feelings or outside pressure should not enter the
equation)
Continued.
4. Discretion must be exercised to make an available
decision (declining to use discretion is generally
prohibited).
5. Discretion can’t be exercised in a discriminatory
manner.
6. Discretion must be exercised in a way that is consistent
with the purpose and wording of the agency’s statute
7. Discretion must be exercised in a way that consistent
with the values underlying the grant of discretion,
including Charter values.
The rule against fettering discretion
1. When exercising their discretion, agency officials should
not rule out appropriate options or unreasonably
restrict the use of their discretion.
2. Let’s consider the examples on pages 60 and 61 that
illustrate this rule against an official unfairly fettering their
discretion:
e.g. #1 – an official with a power to exercise discretion
cannot refuse to exercise that discretion.
e.g. #2 - an official with a power to exercise discretion
cannot refuse to consider any factor that is relevant in
deciding which option to choose.
How to minimize uncertainty in discretionary decisions
and keep discretionary decisions principled
1. Government administrators should follow government policy
when it comes to exercises of discretion – but not at the
expense of adjudicative independence and fairness.
2. Government administrators should consult with other staff
members when making decisions (these consultations are
generally confidential).
3. A tribunal that is reviewing discretionary decisions of a
government official should only overturn government decisions
that are “clearly wrong” or where the wrong procedure was
followed in reaching the government decision.
4. A tribunal should provide clear reasons for over-turning a
discretionary decision of a government official.
Principle #3 - procedural fairness
1. Common law requirement of procedural
fairness – fair procedures have to be
followed by an agency when reaching a
decision; it doesn’t necessarily mean a party
is going to get the decision they want.
2. The meaning of “fair procedures” differs
based on context.
3. Both individual and institutional
independence are required from Tribunals.
Sources of fair procedures
1. Common law.
2. Individual enabling statutes.
3. Statutes of general application that apply to
agencies or tribunals (e.g., Ontario’s
Statutory Powers Procedure Act).
4. The Canadian Charter of Rights and
Freedoms.
5. Tribunals’ own rules own rules of procedure.
Principle # 4 – no sub-delegation of
authority
1. This principle is based on the presumption
that the delegate has the necessary skills,
attributes and knowledge to properly
exercise the adjudicative function they have
been delegated.
2. Accountability and the rule of law might be
compromised if the government official or
Tribunal member could delegate their
decision-making authority elsewhere.
Principle # 5 – subordinate legislation must conform to the
“empowering” statute under which it is made
Two types of subordinate laws:
1. Regulations made by Cabinet ministers.
2. Bylaws made by municipalities.
Accountability mechanisms:
1. Regulations and bylaws passed must be consistent with the purpose
of the statute and the scope of the statutory mandate.
2. The correct procedure must also be followed when making a
regulation or a bylaw, as set out in the governing statute – e.g., p.
65.
Let’s consider the statement from the SCC in Katz Group Canada Inc v
Ontario (Health and Long Term Care), 2013 SCC 64, on pp. 65-66, as
to what has to be shown by a challenger for subordinate legislation to
be found ultra vires.
Other important rules when making subordinate laws such as
bylaws and regulations
1. An official cannot use their delegated
authority to make regulations or bylaws to
regulate an activity in a way that prohibits
the activity “entirely” (e.g., as a town, you
can’t prohibit building altogether in your
town; instead, you must create a reasonable
building code to govern building in the town).
2. You cannot pass discriminatory laws,
contrary to human rights legislation.
Principle #6 – Judicial Review
If an official is alleged to have
breached a fundamental principle of
administrative law, the superior courts
have the power to review the alleged
violation and rectify it as appropriate –
this is called the procedure of judicial
review.