ADMIN LAW CHECKLIST

STEP 1: DOES ADMIN LAW APPLY?

Is it a public body making a decision? And is this a
procedural issue or a substantive issue?
STEP 2: IS THERE A RIGHT TO
APPEAL/RECONSIDERATION/REVIEW?
Check the enabling statute (tends to oust common
law). Does it refer to appeal, reconsideration, and
judicial review? (the enabling statue and the
subordinate legislation)
Exhaust all internal review/appeal mechanisms
BEFORE proceeding to JR.
Check General Procedural Codes, if applicable (e.g.,
JRPA/SPPA/ATA).
If YES is it through internal mechanisms
(reconsideration/appeal within the tribunal) or external
mechanisms (an appeal to the courts)?
o What is the scope of the review (e.g., on a question
of law only)?
o Any preconditions (e.g., time limits, final decisions
only)?
o Is it federal or provincial (statute may spell out
which court)?
o Is the standard of review spelled out in the statute?
o What are the available remedies? Are they limited?
Can the reviewing decision-maker substitute their
own decision?
STEP 3: IF NO STATUTORY RIGHT TO APPEAL OR IF
RIGHT IS LIMITED = JR
Courts have jurisdiction to review through JUDICIAL
REVIEW (s. 96 and Crevier) through an application
to Divisional Court.
Privative clauses page 156- strong/weak
Crevier v Quebec- the constitution implicitly
guarantees the authority of the courts to review the
decisions of admin agencies for errors of law or
jurisdiction and for procedural unfairness

Re-Residential Tenancies Act Ontario [1981] the court

suggests a 3-step approach to the resolution of s96
challenge to an admin tribunals power
o Step 1: historical inquiry into whether the
impugned power broadly conforms to a power
exercised by a superior, district or county court
at confederation
o If not, the inquiry will resolve the s96 issue in
favour of the validity of the power w/o the
necessity to proceed to steps 2 and 3
o if the power is held to be a s96 power at
confederation, it must also be w/in the
EXCLUSIVE jurisdiction of s96 courts at
confederation
o Step 2: reached after a yes answer to step 1, is
an inquiry into whether the impugned power is a
judicial power
o a power was held to be judicial if it involved (1)
a private dispute b/t parties, (2) that must be
adjudicated through the application of a
recognized body of rules, and (3) that must be
adjudicated in a manner consistent w/ fairness
and impartiality
o Step 3: reached after a yes answer to both
steps, is an inquiry into whether the power in its
institutional setting has changed its character
sufficiently to negate the broad power in its
conformity w/ superior, district or county court
jurisdiction

each of the steps are vague and disputable in

many situations

A party seeking to challenge ADMs action/decision

through JR should determine:
o Whether the decision-maker (the tribunal) is a
public body
o Its functions and duties
o The sources of its power and funding
o Whether the government directly or
indirectly controls the body, and

Whether government would have to occupy

the field if the body were not already
performing the function it does.
o MacDonald v Anishinabek Police service et el.
part of the machinery of government
Whether s/he has standing to challenge the
decision
Which court s/he should apply to for judicial review
o Provincial superior court or federal- this
comes from whether the power in question is
prov/fed
Whether the app for JR is within the time limits
any delay or missed any specified deadlines- ct can
extend
Whether the party has exhausted all other
adequate means of challenge
Whether the remedies available address success
o

o
o

o
o
o

STEP 4: REMEDIESWHAT ARE YOU SEEKING?

Substantive Defects: writs, declaration, private
remedies (money/damages)
Procedural Defects: quashing the decision, Charter
remedies
Remember that the court may still deny remedies based on
discretionary grounds.
STEP 5: DISCRETION TO DENY THE APPLICATION FOR
JUDICIAL REVIEW pg 213-216
o Availability of alternative remedies stat appeals from
the enabling legislation- Court will always defer to the
act
o Prematurity- applicant may have good cause for action
but the matter is inappropriate for judicial intervention
o Mootness by the time the claim comes before the
court it will fail to have significance for the applicant
o Delay- delay in commencing and failure to adhere to
time limits
o Misconduct of applicant- can deny a relief if the person
seeking has behaved badly

o
o

Waiver relief may be denied to an appl on the basis

of waiver or acquiescence (know rights but not
enforcing)
Balance of convenience if other avenues of recourse
are available
Standing (i.e., public interest) pg 202
For individual interest it must be that the
rights and interests of that person are
directly affected.
1. Canadian Council of Churches v Canada
(Minister of Immigration and
Employment) issued a 3 part test for
public standing:
1. serious issue has been raised
2. it must have a genuine or direct
interest in the outcome of the
litigation
3. there must be no other reasonable
and effective way to bring the
matter to court
1. seriousness encompasses
both the importance of the
issue and the likelihood of
their being resolved in
favour of the applicant
2. this relates to the experience
and expertise of the
applicant in relation to the
subject matter of the
litigation
3. whether there is a more
appropriate applicant

When a duty of fairness is not owed

(exceptions/limitations)
1. The duty does not apply to investigations or advisory
processesit applies to decisions.
2. The duty does not apply to legislative decisions/functions
Includes policy decisions
Includes subordinate legislation
Cabinet and ministerial decisions may be exempt
BUT need to balance this exception with the question of
whether individuals rights, interests/ privileges are at stake.
3. The duty does not apply to public office holders employed
under contracts.
4. The duty may be suspended or abridged in the event of an
emergency.
5. Interest under section 7 of the Charter that is purely
economic is not enough.
o

Are you challenging procedural or substantive

defects?
Procedural issues-The duty of fairness
Procedural step 1: determine whether procedural
fairness is required?
o The trigger/ threshold testis a duty owed?

Procedural Step 2: If fairness is owed, what is the

content of the duty- what does fair look like?

To determine the content of procedural fairness, look

at the SOURCES OF PROCEDURAL FAIRNESS
The enabling statute
o Generally, if there is an enabling statute, then
that is where you go to determine the content of
the duty.
o Check any regulations or rules made under that
statute.
o Statute can oust what the common law would
provide, but statutory language must be very
clear in order to do so.
o Even clear language could be set aside in a
provision in a statute if it violates a Charter
right.
A general procedural statute/ special provincial level
statutes
o Ontario Statutory Powers Procedure Act (SPPA)
Common law (if the statute is silent or vague)
o Where the enabling statute is NOT a complete
procedural code or it is silent, or only provides
for a minimal procedure or expressly denies
certain procedural safeguards, the duty to act
fairly may be prescribed by the common law.
Applying Baker: The 5 contextual considerations under the
common law
1. The nature of the decision being made and process
followed in making it
2. The nature of the statutory scheme and the terms of the
statute pursuant to which the body operates
3. The importance of the decision to the individual or
individuals affected
4. The legitimate expectations of the person challenging the
decision
5. The choices of procedure made by the agency itself
The Constitution, the Charter, and the Canadian Bill of
Rights
o Charter, s 7: Cases involving life, liberty, and
security of the person must be made in

accordance with principles of fundamental

justice (Singhs 3 questions).
o Bill of Rights: Federal actions involving life,
liberty, security, and enjoyment of property
entitled to due process; determinations
concerning rights and obligations must be made
in accordance with principles of fundamental
justice.
Legitimate expectation
o Procedural fairness may be imposed where
otherwise would not have been.
Specific Content issues:
The Right to be heard
o Notice: timing, sufficient content and form,
manner of service
o EvidenceDisclosure (before hearing): not
absolute and subject to exceptions (privilege,
medical, national security, informants,
commercially sensitive information)
o EvidenceAdmissibility: tribunals not bound by
law of evidence (unless statute says otherwise)
o Timeliness and Delay in proceedings
o Oral hearings: not necessarily required, but ask
whats at stake? (Credibility)
o Right to counsel: not absoluteis it a right to
state funded counsel or just to be represented?
(Seriousness, complexity, capacity of self rep)
o Right to be present
o Right to call and cross-examine evidence
o The duty to give reasons: required where
decision is significant or where statutory right of
appeal and other circumstances as per Baker
(open ended)
Right to an unbiased decision- maker
Test: Reasonable apprehension test (Liberty)
Individual

Antagonism during the hearing

Association between party and decision-maker
Involvement of decision-maker in earlier stage
of process
o Prejudgment by decision-maker
o Monetary/other personal interest
Institutional (Lippe)
o Closeness between an agency/tribunal and
government
o Sub-delegation
o Intra-agency consultation
o Consistent decisions and guidelines
o Multiple and overlapping functions (counsel,
decision-maker
Lack of Independence (Valente, Matsqui)
o Security of tenurebasis for removal
o Financial securityprocess and fixed rate
o Administrative controlassignment of cases and
resources
o
o
o

Procedural Step 3: If there is a procedural breach,

what is the remedy?
Procedural Breach = CORRECTNESSno standard of review
analysis
1. The remedy is to quash/void the original decision
Based on Cardinal v. Kent: Right to a fair hearing is an
independent, unqualified right, the breach of which
always renders a decision invalid (regardless of the
result being right)
b. The remedy may be a Charter remedy (if available)

Substantive- Decision/ Reasons and the Standard of

Review
Substantive step 1: Categorize the nature of the issue
This question raises an error of ___________? (fact, law,
jurisdiction, etc.)
Substantive Step 2: Case Law re Standard of Review
Determine whether existing case law applies to determine
what standard has been applied to that issue/question in the
past.

Substantive Step 3: If no clear jurisprudence=

Standard of review analysis

 REASONABLENESS or CORRECTNESS?
Default is reasonableness
Use Dunsmuir and the standard of review analysis to
determine the applicable standard.
Also, identify any relevant post-Dunsmuir approaches
like proportionality (note the recent decisions).
Consider the 4 contextual factors in the standard of
review analysis
(1) Privative clause: Strong or weak? Existence of
privative clause usually leads to reasonableness standard.
Statutory right of appeal can lead to correctness and
reasonableness. Page 156
(2) Expertise of the decision-maker and the tribunal as a
whole.
(3) Purpose of the act as a whole and the provision in
particular.
(4) Nature of the problem: Question of law, question of
fact, question of mixed fact and law, policy questions,
discretionary questions.
NOTE: May not need to go through all 4 factors.
Substantive step 4: Look at the decision
Is the decision reasonable or correct? Apply the twopart test (reasons and outcome)

(1) Reasons
Do they justify the decision by using transparency,
intelligibility, and justifiability of the process of
reasoning/decision making
that all audiencescounsel, affected persons, and
especially the losing party, reviewing courts, other agencies,
and the general publiccan understand?
(2) Outcome
Do they illustrate that the outcome is also reasonable
when, as is often the case in administrative decision making,
more than one reasonable result is possible?
Substantive step 5: Remedies
Prerogative Writs
o Certiorari (to quash or set aside a decision)
o Prohibition (to order a tribunal not to proceed)
o Mandamus (to order the performance of a public duty)
o Declaration (states the legal position of the parties and
the law applying to them)
o Habeas corpus and quo warranto (release of those
unlawfully imprisoned)
Private Law Remedies
o Money/damages
o Monetary damages for Charter breaches
o The special tort of misfeasance in (or abuse of) public
office