Exam Hints

Which level of government has jurisdiction over a particular legal matter (Exam)

Does insurance regulation fall under Trade and Commerce or Property and Civil Rights?

Vavilov Test

Stage 1: Determine the Standard of review

• Begins with the Presumption of Reasonableness (Presume will use the reasonableness standard)

But, there are two exceptions where the reasonableness standards use by courts will be rebutted/refused

1. Legislative intent(Whether or not the legislature intends for the court to use the correctness standard for this procedure) (Legislative intent found in the tribunals empowering statute)

Where is Legislative Intent found in legislation?

First we look for explicit statements, then we look for implicit statements that indicate the right of appeal.

• Explicit statementsfound in the statute. Such as (A correctness standard must be used when)
• Implicit Statements:statutory appeal (Decisions of this tribunal may be appealed to a higher court)

Does the empowering statute of the tribunal indicate that a standard of review other than reasonableness should be used?

Yes > Use correctness SOR

No > Continue to presume reasonableness SOR

ExamTurn your mind to the silence of the statute Have you demonstrated if the statute is silent on silentness and their is no statutory right of appeal.

Where is the correctness standard fundamentally required? (Three Instances for this particular exemptio

• Constitutional questions(Charter violations, Indiginous rights s.95, determining fed/prov powers s 91/92)
• Questions of central importance to the legal system as a whole(matters to which a uniform and consistent answer should be given in the administration of justice) **Exam, wont be on exam, but should be indicated that it is not present in your answer
• Questions of jurisdictional boundaries between two or more tribunals(Human rights code, applying human rights)

If any one of these is found, a correctness standard of review must be used. (For exam however, even if one is found, keep checking if any other instances are found

2. Rule of Law requirement test(

• If you find something under reasonable intent, you then refute the presumption of reasonableness and use correctness SOR
• If you dont find something > Do not refute presumption of reasonableness

EXAMNot going to have to rebutt the presumption of reasonableness - Will be using the reasonableness standard of review for exam

The court is not looking to determine what decision it would make in place of the administrative decision, instead they must determine the range of possible conclusions, conduct a new analysis or seek to find a solution to the problem

The reviewing court must consider onlywhether the decision made by the decision maker; including both the rationale for the decision and the outcome to which it led, was unreasonable

All decisions are reasonable if they are not unreasonable.

Decisions are unreasonable if:

1. There is a failure of rationality

(If there is a gap in logic between the reasons provided by the administrative tribunal and the outcome)
Is there a rational connection between these three: (If not, it is unreasonable)

1. Circumstances of the case (facts)
2. The purpose of the statute
3. The decision makers final decisions

2. the decision is untenable given the factual and legal constraints bearing upon it
3. No sufficient facts for the decision maker to arrive at their decision
4. When certain facts are ignored in rendering the decision
5. When decision makers do not follow the law set out in the statute or by the courts

ExamWhen/If you remit the matter back to the tribunal, you must indicate clearly what kinds of direction you would give to the tribunal when they re-make their decision. Also indicate why you are remitting the decision back.

Students who do the best in the exam use the word Because (Always explain/elaborate)

Roncarelli v Duplessis

Circumstances - Facts of case (Lost liquor license)

Purposes of statute

• (Liqour board statute is meant to control liquor sales) *Action taken in revoking license does not follow intended purpose of the statute

Review

Is it unreasonable?:

1. There is a failure of rationality
2. The decision is Untenable given the factual and legal constraints bearing upon it

Full Admin Law Test

1. Determine whether the administrative tribunal decision can be judicially reviewed
2. Determine the Standard of Review to be used to review tribunals decision
3. Determine whether the tribunals decisions should be upheld or remitted back for reconsideration

EXAM

When courts review the decisions of administrative bodies, it is not done with the purpose of invalidating the decision. It is conducted in order to confirm the decision is in line with the constitutional context.

• Judges are given the ability to invalidate administrative decisions
• When invalidating decisions, judges are simply sending it back (remitting) to the relevant administrative bodies to hear/review the case again. They are not making an actual decision regarding the case
• May be relevant to courts if there are notably *Public Dimensions* to the administration in question.

Decisions of Administrative Bodies are not always reviewable by judges.

When you are making a decision on the constitutionality of an administrative case - ***You are only deciding whether the administrative decision should stand or should be remitted.

Procedural Protections

• Concerned with the process used by decision-makers to make decisions

Substantive Protections

• Concerned with the substance of decisions
• Was the decision correct or not?

The previous two are invariably linked yet formally treated separately in court review.

SCC: Judicial review is only possible when there is an exercise of state authority sufficiently connected to an element or dimension of public character.

• Simply because a decision may impact a broad section of the public does not make it public in the eyes of the courts
• Churches are not a government-delegated decision-making body and are not judicially reviewable

Full Admin Law Test

1. Determine whether the administrative tribunal decision can be judicially reviewed
2. Determine the Standard of Review to be used to review tribunals decision
3. Determine whether the tribunals decisions should be upheld or remitted back for reconsideration

EXAM

• What are courts doing (Remitting or leaving-be.)
• The administrative body in question likely will be reviewable, but you must sufficiently explain why this is the case? (point out Public-dimensions, cite case law)

EXAM

Legal Test (To determine if Fed has jurisdiction under EPD

1. Is there a rational basis
2. Is there a temporary solution

Step 1

• Use the provided legislation (preamble)
• But the preamble is not always determinative! Look for other evidence in the facts

Step 2

• Look for an expression/aknowledgement that would indicate an end to the use of the legislation (i.e. a date or timeline, which may be as simple as m/d/y)

NCD Legal Test Exam

Legal Test

1. Parliament must demonstrate the national importance of the subject matter
2. Parliament must demonstrate the subject matters singleness, distinctive and indivisible criteria/quality.

• 2a) The matter must be qualitatively different from other maters of provincial concern
• 2b) Must show that provinces are constitutionally incapable of enacting legislation to deal with the subject matter. (ex. Ontario wants to legislate a matter of national concern in BC)
• 2c) Must show that failure of the provinces to deal with the matter will result in grave consequences

(2a,b,c all must be answered yes), however for the exam, you must continue each stage of the test

3. Parliament must show that other provincial areas of jurisdiction (anything in sec 92) are not greatly impacted by assuming authority over the subject matter in question.

Exam NCD LEGAL TEST CONTD (Exam question Most likely has met the threshold for #1.)

Step 1: Are you convinced there is an emergency (exam: you probably will be)

Step 2a) Is the mater qualitatively different from other matters of provincial concern

• (Is the matter inherently extra-provincial - is it exclusive to only one province? If yes, it is qualitatively different)

Step2b) (Can the laws of diff provinces work together? Can a province impose laws on/in other provinces?)

Step 2c) (Based on own analysis and thoughts on situationn

Key Points

How does law mediate the relationship between government and society

Dont use heading at all (name, student number, name of course) at all But this information can be single spaced unlike rest of paper

Each question on new page

What is the exam>?

• Determining the constitutional jurisdiction of government activity
• Determining a legal matter within the administrative law framework/context
• Cite case law as much as possible to explain concepts and ideas
• Do not summarize facts! Dive into the issue! State first What the legal question is that you're answering

How do I answer the question>?-

Issue ( Identify and correctly state the legal issue you are answering

Law

( Identify the legal test & legal authority and what the test does (Main case law) that you will rely on). (Fully explain each stage of the legal test, Additional case law should be used to support explanation

Analysis

• (Apply the legal test to the facts of the case. Note each stage must be considered and applied
• Clearly explain and clearly articulate your reasonings throughout
• Use analysis to unpack the law the cases that developed the legal test and briefly its significance rather than putting this all in the beginning

Decision & Action

Stage 1: Pith & Substance

• Determine the main thrust(purpose) of the subject matter (i.e regulating the sale of alcohol, dealing with pollution, fighting inflation, unemployement insurance etc

Stage 2: Within Jurisdiction of Government Enacting Law

• Determine whether we are looking at the provincial or federal gov authority (Sec 92 or 91) (Case law here property & civil rights parsons insurance)
• Determine whether one or both gov bodies have jursidiction

For Prov, consider s.92(13) property & civil rights

For Fed utilize the Federal Jurisdiction Tests under pogg (Peace order & Good Government) (Cite case law here which subject is in question first <>Trade and commerce powers

• Are you willing to grant additional powers to prov or fed with this action? What are the implications?

Stage 3: Reconcile

• Use double aspect doctrine (What is it, what is it used for, how is it used?) (to explain, you might want to individually justify or explain the feds reason for having jurisdiction and the provincial govs reasoning for having jurisdiction

ADMIN TEST

Stage 1: Determine whether the admin decision should be reviewed

• If yes: Proceed to stage 2 (Legal authority is Vavilov v.)

Stage 2: Determine the Standard of Review

• Can the presumption of reasonableness be rebutted
• If yes: Use correctness SOR.
• If No: USe reasonableness SOR

Stage 3: Determine whether tribunals decision should be upheld

(Stage 2&3 use a Toronto case law) Don't cite baker or procedural fairness

(Being tested on your reasoning)

You should do 3 pages each not 6 pages total

Cat names can go on page 7

Left Cat: BEAN

Right Cat: CINDERS

Administrative Law Test (Substantive Review Test)

Use clear and explanatory language to introduce the test and also to explain the process of each stage of the test. This is a three stage test used to..

Stage 1: Determine whether the administrative decision should even be reviewed?

• Clearly articulate why or why not
• If Yes: Continue to stage 2

Stage 2: Determine the Standard Of Review (SOR)

• Can the presumption of reasonableness be rebutted?
• If Yes: Use Correctness SOR
• If No: Use Reasonableness SOR
• (Insert definition for presumption of reasonableness here) :Can it be refuted

Stage 3: Determine whether the the administrative tribunals decision should be upheld or remitted

Which of the following is the appropriate case law to cite as the legal authority for developing the substantive review test? : Canada v. Vavilov

Stages Contd

Pay very close attention to the statutes you are receiving on the exam.

Stage 1:

(Exam) For the Exam it is likely that the decision will be reviwable***

• What subjects are reviewable?
• Tested mainly on reasoning (Justifying answers, connecting dots)
• Highwood Congregation v. Wall (SCC Decision): When an administrative bodies decision could be reviewed (Public element): Not all decisions that appear to be public however are reviewable

Simply because a decision impacts a broad segment of the public does not mean it is public in the administrative law sense of the term (Justice Rowe)

• Judicial review is reserved for state action and the legality of state decision-making
• Articulate these concerns and topics in your answer for stage 1 on the test.
• There doesnt need to be legislation that shows there is a specific right to review a decision
• Decision makers whose authority and powers are created by statutes are subject to judicial review (because it strongly indicates that the actions of this administrative body are essentially of the state). (Tenate board legislation)]
• Churches are generally not reviewable. If this shows up cite case law that confirms this notion.
• Doesnt matter what the violation is, if one of the tribunals decisions can be reviewed, any can be

Stage 2: Determine the SOR

Exam You are likely to find that the presumption of reasonableness cannot be rebutted**

• Can the presumption of reasonableness be rebutted? If so, use the correctness standard
• We start our inquiry with the presumption of reasonableness (We presume we will use reasonableness)
• Strengthen your answer by clearly articulating: What does the presumption of reasonableness mean? How can it be rebutted??
• There are only two exceptions to the presumption of reasonableness (Legislative intent &
• Legislative intent is found in the Tribunals empowering statute.
• Legislative Intent can be shown with (explicit intent or implicit intent)
• There are 3 instances of correctness standard (When there is constitutional questions, questions to the legal system as a whole, or questions that concerns the balance of power between two or more tribunals

You are encouraged to cite case law throughout the stages and justifications within each stage

Stage 2: Determine whether the tribunals decision should be upheld

• Frame the question as: Is the tribunals decision unreasonable? Not: Is it reasonable. (Vavilov)
• Deference is more likely to be shown to the decision maker when the reasonableness standard is chosen
• Use the words Reasonable and Not Reasonable not Unreasonable
• Decisions are reasonable unless

1. There is a failure of rationality
2. The decision is untenable in light of

• Looking for a break in logic in the connection between

1. Circumstances of the case
2. The purpose of the statutes
3. The decision makers final decision

Did the decision maker follow the law set out in the statute.

3 fact of whether something is tenable or untenable

Start each of the questions on the top of a new page

EXAM BONUS 2%

LEFT CAT : BEAN

RIGHT CAT: CINDERS

POGG Clause - Peace, Order and Good Government

• 91 It shall be lawful for the Queen to make laws for the PEACE ORDER and GOOD GOVERNMENT OF CANADA
• POGG is found in sec 91

Different understandings (JCPC generally follows 1.)

1. POGG powers are purely residual; covering anything not listed in s.91 or s.92
2. POGG powers are general grants of authority (It covers everything except for which is found in sec.92) (differs from 1. In that it extends beyond federal and provincial powers (sec91&92)
3. Powers under s.91 are examples used to reflect the very broad authority of the federal government under POGG

Administrative Law (Natural Justice)

1. Audi alterum partum - To hear the other side
2. Protection against bias (Even having heard of the case on news prior, no influence from others)
   
   

• Notice
• Representation 1-3= Low Level Protections
• Written Reasons

• Disclosure
• Oral Hearing 4-6= Medium-level protections
• Cross Examine

• Right to counsel
• Legally trained decision maker 7-9 High level protections
• Full court proceedings

Section 92 Courts(Purely Provincial Courts)

• Created organized ad administered by provincial Government
• Judges are provincially appointed

Section 96 Courts (Mixed courts)

• Created organized and administered by provincial governments
• Judges are appointed and paid for by the federal government

Section 101 Courts(Purely Federal)

• Created organized and administered by the federal government but paid for by province
• Judges are federally appointed

Federal government Authority under Section 91

2. Regulation of Trade and Commerce
3. Postal Service
4. Militia, Military, and naval service and defence
5. Indians and land reserved for Indians
6. Marriage and Divorce

Citizens Insurance V. Parsons, 1881

Facts

• Mr Parsons owned a store in Orangeville, Ontario that burned down
• Citizens Insurance did not
• Parsons sued them for not complying with Ontarios fire insurance act
• Ontarios fire insurance act was not in the authority of Ontario to make
• Parsons argued it was a matter of a private civil case (contractual)
• Does insurance fall under provincial or federal authority

Significance

Property and civil rights S. 92 (13) (Province

Vs

Trade and Commerce S. 91 (Federal

Parsons Case

• Determine Pith and Substance
• First tool used to determine which level of government has authority on a matter.
• Meant to determine basic purpose and effect of a piece of legislation

Re: Greenhouse Gas Pollution Pricing Act, 2021 SCC II

1. Intrinsic evidence (Preambles Purpose Clasue
2. Extrinsic Evience

2) Determine the Scope of the provincial powers

• Used to determine whether the issue could fall within the scope of sec 92 of constitution act 1867
• If it does not fall under sec 92 (Province) then it is federal authority

3) Determine scope of federal powers

• Does it fall under sec 91 (federal authority
• If authority of province and federal simultaneously move to step 4

4) Reconcile

• The question might be reinterpreted in a more narrow way to isolate the answer to province or federal
• If there is truly overlap, the fed will overrule province

Provincial Government Section 92

2. Direct taxation within the province in order to the raising of revenue for provincial purposes
3. The establishment, maintenance and management of public and reformator prisons in and for the province
4. Municipal institutions in the province
   12. Solemnization of marriage in the province
5. Property and civil rights in the province.

Delegated Authority- Transfer of decision-making power from one party to another

• Administrative bodies referred to as creatures of statute
• Relevant in administration law
• The crtv is legislated to fulfill the legal authorities of the legislature in the way of regulating media.
• Tenant boards and CRTCs power is delegated authority given by the legislature
• Meant to fill some sort of legislative duty
• Its legitimacy comes from the fact that the legislature passes laws and agrees to hand over powers to boards, individuals
• Hodge v. The Queen (JCPC, 1883) (Can the province delegate an authority to control their liquor laws? Determination (No limit on how much power the province or federal can grant?
• Limitations? Action needs to be authorized by law, Must comply w constitution, subject to judicial review.

Court Role

• Courts seen as supervisors, guardians Over government actions,
• Courts make sure that decision makers (tribunals) do not step outside their legally regulated boundaries given by the legislature.
• Courts do this from a substantive perspective and a procedural perspective

The Accountability Dilemma

• On one hand, courts provide an essential accountability functionby policingthe exercise of delegated discretionary powers and assure that they follow the terms and purposes of their authorizing statute
• At the same time, they must allow them to stand and as they are not experts in all specialized administrative fields, there is complications in controlling them and are regulated themselves to respect these institutions

Deference

• Standard review (Indentifying the tools/metrics that they need to use to test that decision against, not a one size fits all, each administrative body is very different) they must choose one standard
• Two standards Reasonableness 2. Correctness
• Decision is assessed as Reasonableor Unreasonable/ or Corrector Inccorect
• Correct vs incorrect (2+3= 4) Empirical
• Reasonable vs Unreasonable not empirical, more subjective, outliers might exist (Coming to class increases grades
• Correctness standard indicates a lower willingness or likelihood to show deference
• Reasonableness standard indicates a greater willingness to show deference and to let the tribunal decision stand.
• SOR = Standard Of Review
• Standard of review must be chosen before answering the question

Three Doctrines

1. Gap Doctrine

A power that belongs to the federal government when there appears to be some sort of gaps or holes in the distribution of powers enumerated in the constitution. (An unidentifiable issue area that should fall into 91 or 92. Seeks to rectify an omission made by the founders of the constitution.

Quebec v. Canada,1932 Radio Reference Case(Does the federal government have the authority to enter into international agreements to regulate radio communications?

Federal Governments Argument:Constitution Act 1867 was silent on what gov has jurisdiction over international agreements over radio waves

Issue:There was a gap in the division of powers over the regulation of international radio waves

Determination:In the absence of a provision written in the constitution regarding this matter and its jurisdiction, the Federal Gov is given authority.

2. Emergency Powers Doctrine

A power of the federal government that allows it to allows it to intervene temporarily in provincial areas in the case of an emergency and thereby temporarily take powers away from the provincial.

Toronto Electric Commission v. Snider, 1925 (EXAM****) Rely on this

JCPC Ruling: Fed government does not have jurisdiction in this matter as it was a contractual matter.

Only way this could be a federal power would be in the case of famine or war, thereby defining emergency. Exceptional standards are required to take powers from the provincial gov.

Fed Can only rely on Emergency Doctrine if: War, Famine, state of Country being imperilled or jeopardized, or Highly exceptional circumstances.

Fort Francis Pulp and Paper v. Manitoba Free Press, 1923

Federal government responsible for defining emergency

But very clear evidence required to justify fed intervention

4 types of emergencies.

1. Public Welfare (i.e natural disasters)
2. Public Order (i.e. Domestic security threats)
3. International (i.e. Threat of force or violence against Canada or an ally)
4. War Emergencies ( Armed conflict with Canada or allies)

3. National Concern Doctrine

A power that allows the federal government to take over provincial matters when the issue becomes one of national concern

Legal Test

1. Parliament must demonstrate the national importance of the subject matter
2. Parliament must demonstrate the subject matters singleness, distinctive and indivisible criteria/quality.

• 2a) The matter must be qualitatively different from other maters of provincial concern
• 2b) Must show that provinces are constitutionally incapable of enacting legislation to deal with the subject matter. (ex. Ontario wants to legislate a matter of national concern in BC)
• 2c) Must show that failure of the provinces to deal with the matter will result in grave consequences

(2a,b,c all must be answered yes), however for the exam, you must continue each stage of the test

3. Parliament must show that other provincial areas of jurisdiction (anything in sec 92) are not greatly impacted by assuming authority over the subject matter in question.

Exam*** (Exam question Most likely has met the threshold for #1.)

Step 1: Are you convinced there is an emergency (exam: you probably will be)

Step 2a) Is the mater qualitatively different from other matters of provincial concern

• (Is the matter inherently extra-provincial - is it exclusive to only one province? If yes, it is qualitatively different)

Step2b) (Can the laws of diff provinces work together? Can a province impose laws on/in other provinces?)

Step 2c) (Based on own analysis and thoughts on situationn

Also: The Double Aspect Doctrine

There are legal powers in place that allow the federal government to take over provincial matters in specific circumstances.

The Federal Jurisdiction Test

Lord Watsons observations

1. Powers of the Federal Government are not unlimited

• Ought to be strictly confined to things that are unquestionably of Canadian interest and importance.
• Ought not to trench upon provincial legislation with respect to any of the classes or subjects enumerated in section 92.

2. Recognized some areas may be of National Concern

• Some traditionally provincial matters may attain such dimensions as to affect the body politic of the dominion.
• Like the gap doctrine and unlike the emergency doctrine: If the Federal government manages to invoke the National Concern doctrine upon a provincial matter, it permanently becomes a federal matter.

What do you consider to be matters that are "unquestionably of Canadian interest or importance" ?

When Done with Gap test, move to emergency doctrine test, then National concern test: Determine whether the matter can be controlled federally.

Gap: When constitution is silent of jurisdiction assigns fed authority - Permanent

Emergency Powers Doctrine: When matters of emergency warrant Fed intrusion - temporary

National Concern Doctrine: When a provincial matter is or becomes of national concern -Permane

Part of JCPCs Decision on Ontario v. Canada (1896):

The Double Aspect Doctrine

• When a matter falls within jurisdiction and allows both bodies to make laws about a matter. Minute Components may be determined to have jurisdiction whereas the totality is a jurisdictional matter of both
• A test devised by the JCPC to reconcile how a potential issue could possibly fall within the jurisdiction of both federal and provincial.

Administrative Law

Regulating Canadian Content

CRTC is an Independent Regulator

1932 - Canadian Radio Broadcasting Commission

1968 - Canada Broadcasting Act

1976 - Telecommunications added to CRTCs authority

CRTC Decision Makers

• 13 Full-time Commissioners
• 6 Part-time Commissioners

Non-legal body that makes important decisions that impact all Canadians (ex. White n* of America

Canada Broadcasting Act

S.3(1)

• Broadcasting systems should be owned and controlled by Canadians.

(e) Each element of the Canadian broadcasting system should contribute in an APPROPRIATE manner to the creation and presentation of Canadian content

(g) Programming should be of high standard

S.2(1) Commission means CRTC

S.5 The commission shall regulate and supervise all content in accordance with implementing S.3

Administrative law

• Delegated power authority
• Decisions made by public agencies
• Decisions by courts that review public agency decisions (Also concerned with the judicial review of public agencies)
• Can be overturned by judicial decisions

(contd)

• Field of law concerned with the rules that govern the operation of Government
• Establishes the rules and legal parameters that public decision-makers must follow

• Focuses on the relationship between agencies of governance
• Embodies the principles by which courts supervise the exercise of power derived from statutes.

Judicially developed body of law developed under the common law system meant to deal with te embalance between state and society

How are decisions made? Who makes those decisions? How have courts ensured that decisions are carried out in accordance with the law (Accountability)

Judicial review of the exercise of statutory powers

Non-constitutional aspects of the law governing the relationship between the individual and the state.

The opinion below echoed by many key legal figures

C.J Beverly McLachlin (SCC)

• Many more citizens have their rights determined by tribunals than by courts.

The relationship between the state and society is symbiotic

The administrative state is the aggregate product of our ancestors, A product of past encounters of previous lawmakers and their relationship with the Canadian state since WWII

The administrative state is the unintended result of national expansion and the need for bodies outside of community figures and churches to deliver resources to citizens and communities.

Current Regulatory State Model

• Legislative objectives set out in provisions more generally through statutes.
• Courts still apply laws.
• Heavy lifting is done by regulations created by the executive branch under orders-in-councils

To defy the administrative state is to defy a simple description.

A shift from traditional model to the Current Regulatory State model

These bodies are created and continuously created to perform government-like functions (delegated authority- serving roles on behalf of the government) created by legislation (Statutes give administrative bodies their authority. Creatures of statute

• Power can be modified or taken back.
• Power and jurisdiction differ between bodies

C.J McLachlin - There are thousands of administrative systems that occupy the legal landscape.

Peter Hogg - In the Last 100 years, we have seen such an increase in administrative tribunals to the point that administrative tribunals undoubtedly decide more cases and probably dispose of more dollars than do ordinary courts.

Administrative Institutions benefits

1. Expertise - specialized in specific policy areas
2. Innovation - Policy analysis and development
3. Initiative - focus on initiating proceedings via their discretional authority. Education (OHRC)
4. Effectiveness - Can handle large volumes of cases
5. Efficiency - Less costly - Can be less formal (Judges vs part-time employees)

Criticisms

1. Backlogs
2. Budget capped by executive & often cut suddenly
3. No universal standard to typologize these institutions with

Crown Corporations (Federal) - A state-owned enterprise fulfilling a business-like function of the state.

Statutory Agencies -(Fulfills 4 Roles) Advisory, Regulatory, Administrative, Adjudicative

Advisory - Administering, renewing, suspending, revoking licenses

Advisory - Research, Developing strategic Plans, policy support

Regulatory - Establishing market prices, broader regulatory rules

Adjudicative - Makes quasi-judicial decisions

Crown Agencies (Federal) -

• (Ex. Canada Post, Canadian Broadcasting Corporation, VIA Rail, (Previously Air Canada, Canadian Heritage Museum,)

Crown Agencies (Provincial)

• (Ex. GO Transit, OCS, LCBO, TVO

Statutory Agencies overlap in their authority in many cases (Structural Heretics)

Case Law

Citizens Insurance v. Parsons

established the test for jurisdiction

Provincial Powers under Property and Civil Rights (PCR)

• Citizens Insurance v. Parsons clarified the meaning of Property and Civil Rights
• Property and Civil Rights narrowed to mean beyond Real Property anything that can be contractual or tort-ous in nature
• PRC All things that can be owned
• Insurance is made to be under this provision Section (13) Property and Civil Rights

2 Important Points

• Citizens Insurance v. Parsons established the test for provincial/federal jurisdiction.
• CI v. Parsons clarified the meaning of Trade and Commerce.

New definitions that is still used today in courts

Because of this new definition, regulating insurance contracts would not fall under Sec 91s (2) Trade and Commerce, thus making it a provincial authority.

Facts

• Mr Parsons owned a store in Orangeville, Ontario that burned down
• Citizens Insurance did not
• Parsons sued them for not complying with Ontarios fire insurance act
• Ontarios fire insurance act was not in the authority of Ontario to make
• Parsons argued it was a matter of a private civil case (contractual)
• Does insurance fall under provincial or federal authority

Significance

Property and civil rights S. 92 (13) (Province

Vs

Trade and Commerce S. 91 (Federal

Parsons Case *****

• Determine Pith and Substance
• First tool used to determine which level of government has authority on a matter.
• Meant to determine basic purpose and effect of a piece of legislation

Russel v. The Queen 1882 - Year is important ** exam

Facts

• R convicted of selling alchohol contrary to the Canada temperance act(Federal legislation)
• R argued that alcohol was an issue/subject matter that fell within provincial jurisdiction of PROPERTY AND CIVIL RIGHTS - thus out of fed control and could not be convicted under the fed legislation
• JCPC disagreed with R

The promotion of temperance is equally desirable and of concern across all provinces throughout the dominion. It is a great evil and of great concern (alchohol). Thus it should be the authority of the fed as the current legislation provides a remedy to an evil of great concern that exists across thedominion

JCPC: alcoholism as a national concern

National Concern Doctrine

• A power that belongs to the federal government to have jurisdiction in matters that would otherwise be provincial in situations where those provincial matter would be of great importance to the country as a whole

Example:

Ontario (AG) v. Canada (AG), 1896 - Mind the year

Background: Ontario had passed laws very similar to the Fed Canada Temperance Act and called it the Local Option Act

JCPC Court determined that Ontario had the authority to pass liquor laws, but Supreme Court denied the province

JCPC Ruling: The provinces did have jurisdiction of alcohol under Section 92(13) (property and civil rights)

Kosoian V. Societe De Transport De Montral 2019

Kosoian V. Societe De Transport De Montral 2019

Quebec Civil Law

-Police have the power the arrest when they have reasonable ground a person has committed an offense (s.48 Police Act)-statutory law

• Police are bound by strict rules of conduct meant to prevent arbitrary and unjustified action
• Police have no public law immunity
• May be found civilly liable for injury they cause if they deviate from the rules (article 1457 Quebec civil code)

Facts of The Case

Article 4(e) of STM by-lawno one shall Ignore a guideline or pictogram posted by STM

• Kosoian failed to hold handrail on escalator as instructed by STM pictogram

• Police officer (Cst. Camacho believed he was enforcing the law in demanding she follow the instructions of the pictogram.

Issue:(2019 SCC 59, para 36)

Did Cst. Camacho incur civil liability by acting as he did to the plaintiff for her failure to hold the handrail.

Lower Court Decision: Should have complied.

Supreme Court Decision: It is a warning: intention is simply to advise users to be careful

SCC (Unanimous decision - Justice Cote, para 91)

No one should expect/ be expected to submit to unjust state intrusion/interference to freedom/movement. (The plaintiff can not be blamed for not following the officers instructions)

• One does not disobey a warning, at most one refuses to take notice of it

The language used caution, attend to children, avoid are also suggestions and advice.

• Yellow indicates warning

No red circle red bar or other prohibitory signal

What Should Police Know?

Police officers are obliged to understand the criminal law & penal law they enforce/prevent, the extent of their power and how to exercise their power effectively & appropriately.

In carrying out their mission, police officers are required to limit these same rights and freedoms using the coercive power of the state, including by detaining or arresting individuals and by conducting searches or seizures. The risk of abuse is undeniable. That is why in a society founded on the rule of law it is important that there always be a legal basis for the actions taken by police officers. In the absence of such justification, their conduct is unlawful and cannot be tolerated (Para 33)

• Setia V. Appleby College, 2013 ONCA 753

Decisions of Administrative Bodies are not always reviewable by judges.

- 7th Grader caught smoking weed in the dorm.

• Q: Do courts have the jurisdiction to review the school's decision to expel the student?
• ONSCJ: Yes (It was an administrative law matter).
• ONCA: No (Was an exercise of statutory powers)
• The decision is not the kind of matter reached by public law. It does not have a sufficient public dimension.. It is not something which public law remedies can therefore be applied.

West Toronto United FC V. Ontario Soccer Association, 2014 ONSC

• Did the divisional court have the jurisdiction to review the decisions of the Ontario Soccer Association
• Yes: The OSA controls the playing of competitive soccer in Ontario with 500,000 players and with millions of family members affected. Therefore the OSA has a very broad public impact and, therefore, significant public responsibilities. The activities of the OSA fall into the purview of public law because of the broad public element, the number of people affected, and the unique administrative purview the body has in regulating the sport throughout the province
• HOWEVER for other cases Simply because a decision may impact a broad section of the public does not make it public in the eyes of the courts

Highwood Congregation Of Jehovahs Witnesses V. Wall (2018)

• Member of church expelled - appeals decision to internal religious hierarchy - Seeks judicial review
• Churches are not a government-delegated decision-making body and are not judicially reviewabl

Peter Hogg and Cara Zwibbel, 2005

• The rule of law is a notion that is taken seriously by many as describing a society with an effective legal system that respects individual liberties

• The expectation that we hold of security and order from our country when our country values these things

• The rule of law is a body of laws that are publicly available, generally obeyed and enforced

• The restrictions on the government of what they can do lawfully and what can be enforced

• Independence of the judiciary and legal profession

• An ideal that influences how our laws are made and administered but has no direct force on its own. (Hogg and Zwibbel pg. 717)

• To breach the rule of law does not mean validity, and it does not protect us against bad laws.

• Hard to know how to classify the rule of law (pg. 719)

National Concern Doctrine (Settled in the case:

1. v. Crown Zellerbach, 1988)

Case established a 4 step test

Facts: CZ dumped waste on the coast of BC, charged with Ocean Dumping Control Act (Fed law)

CZ argues fed doesnt have jurisdiction, as natural resources were provincial matters

Fed gov argues it has jurisdiction under National Concern Doctrine of POGG

Jurisidction granted by Nation Concern Doctrine is permanent.

Hodge V. The Queen (1883)

Facts

• Ontario Liquor license Act, 1877 prohibited the use of billiards tables in establishments during times when alcohol was being sold.
• Hodge - Tavern owner - Owned a billiards license and an alcohol license
• Convicted for allowing billiards playing while alcohol being sold.

Hodges Argument: Ontario gov does not have jurisdiction over matters of alcohol

JCPC: Provinces did hae authority to regulate matters to he sale of alcohol and the playing of billiards under s.92(13) (Property and Civil Rights).

But.. Fed also had jurisdiction proven just one year prior in Russel v. The Queen

Set the stage for the Double Aspect Doctrine -

Court determined two aspects (Double Aspect) to alcohol jursidiction

1. Actual sale of alcohol (Province - Ontario)
2. Adverse effects of alcohol (packaging, labelling etc) (Federal)

If there are overlapping features or characteristics and there isn't just one element to the jurisdiction, then the jurisdictional authority of both federal and provincial on the matter may stand.

If No - Only one can hold authority over the matter.

Roncarelli v. Duplessis (1959)

Background:

Quebec, the 1940s.

Premier: Maurice Duplessis

Catholic Church was very involved in delivering social services

Plaintiff: Mr. Frank Roncarelli

Member of the Jehovah's Witnesses

Restaurant owner with license to sell alchohol

Maurice Duplessis hated the control of Catholic church over social services & them going door to door, while Jehovas witnesses would go to jail for public disorder for doing the same going door to door.

Duplessis would go door to door and pay his and other Jehovas witnesses bail when jailed.

Facts:

• Roncarelli was viewed as a problem by the Quebec government. - Paying bail to get himself and other Jehovah's witnesses out of jail to continue going door to door
• Liquor License was terminated by the government (1946)

Legal Argument

• Abuse of power
• Questioned the government's authority to terminate licenses.

SCC Decision

• 6-3 majority
• Ruling: Cancelling Duplessis permit was unlawful
• Without legal justification

1. There must be known and enacted laws
2. Everyone including the government is subject to the law
3. All government actions must be authorized by law

Roncarelli v. Duplessis

• Clarified the Rule of Law
• Established strong precedent

Actions must be authorized by law

The alcoholic Liquor Act, RSQ 1941 -

• Sec 35 - The Commission may at its discretion cancel a permit at any time.

Meanwhile

• Sec 5 - The exercise of the functions, duties and powers of the Quebec Liquor Commission shall be vested in One person alonenamed by the Lieutenant-Governer in Council, with the title of Manager.

Roncarelli did not violate any aspect of that act. There was not justification for roncarellis license being cancelled

Ex) Ontario Liquor License Act, R.S.O 1990, c. L.19

Section 29 - No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated. R.S.O. 1990,

Section 61(5) - in addition to any other penalty or action under the act, the license of a licensee who violates the act shall be suspended for seven days

Emergency Powers Doctrine legal test developed in the case

RE: Anti-Inflation Act, SCC 1976

Legal Issue: Does the federal government have the authority to enact an anti-inflation act under POGG?

SCC Decision: Government has power here under Emergency doctrine, not national concern doctrine. The Emergency Powers Doctrine can temporarily displace the ordinary division of powers when the government has a rational basis for responding to exceptional emergency circumstances

1. Parliament must show it has a rational basis on which to believe there is an emergency
2. Parliament must offer a temporary solution to address the emergency.

-Wells v. Newfoundland (1999)

• Government abolished the Public Utilities Board.
• Andrew Wills was an employee of the board who would lose his job
• Wells argues it is a breach of conflict and that the Newfoundland government does not have the authority to abolish the board. Believes there is a breach of the rule of law

SCC decision

In a nation governed by the rule of law we expect that the government will honour its obligations unless it explicitly exercises its power not to. In the absence of a clear express intent to abrogate rights and obligations - rights of the highest importance to the individual - thse rights remain in force. To argue the opposite Is to say that the government is bound only by its whim, not by its word.

SCC

• Legislature can abolish the board as it pleases,
• but clear and specific language is required to extinguish existing rights to compensation conferred within an agreement between the parties.
• The legislation did not contain clear and specific language regarding compensation

Kosoian V STM, 2019 SCC 59

• Act respecting public transportation
• Police services act

Sec 48. The mission of police forces and of each police force member is to maintain peace order and public security to prevent and repress crimes according to .. Municipal bylaws

3. Regulations (Found in police services act)

-Code of ethics of Quebec police officers

Sec 2. In order to promote the quality of police in relation with the public police officers shall promote the development of their profession through the exchange of knowledge upgrading courses training programs

Sec 3. ...Ensure the better protection of e public by developing high standards of public service and professional conscious and and to ensure the respect of human rights and freedoms

Sec 6. Must avoid any form of abuse of authority in their relations with the public.

Sources of law in the case

1) STM bylaw ( What the officer thought he was enforcing)

2) Provincial laws (Quebec statutes)

3) STM Pictogram

4) The constitution (The constitution is what grants power to the provincial legislature so it is reviewed) -Does the Quebec government have the authority to authorize a crown transit company

The sources of law are structured in hierarchical authority.

Their binding authority is determined by where in the hierarchy they are. Chain of command.

Law comes from the Montreal transit company (Article 4e)

Montreal transit company gets its power from the (act respecting public transit authority, Quebec police act)

Hierarchy

• Constitution (BNA act 1867) Not 1982! >
• Provincial law(Act respecting public transit authorities. Quebec Police Act >
• STM by-law (Sec 4e) >
• Pictogram

Determined no break in the chain of authority. The pictogram was simply not law

Kosoian was not arguing that break in the hierarchy, not saying the acts were unlawful. She didn't say sec 4e was unlawful, She argued the pictogram specifically was not law.

There are no penalties associated with 4e

Operation Dismantle V. the Queen 1985

• Group said bombs being dropped in Canada violated sec 7 of the constitution (Might raise the likelihood of soviets bombbing Canada)
• Government argues the event is a non-justiciable matter
• SCC disagrees but upholds government action
• SCC there is not sufficient evidence the action would violate Sec 7

Whenever a charter of rights violation is reported, it must and will be investigated

Canadian Federation of Students v. Ontario 2019

• Gov makes 2 arguments
• 1) Core-policy decisions
• 2) Prerogative powers on public spending

Edwards v. Canada (1929) The Persons Case

• SCC - Women were not considered legal persons
• JCPC - Women were considered legal persons. -Activism (No indication of this decision being derived from the constitution)

Manitoba Reference case -

provincial government asks for supreme court opinion

1870 - Manitoba act passed (part of the constitution

• 1873 - All laws must be passed in English and in french
• 1890 - Passed official languages act. (Laws only could be passed in English
• 1892 - Official languages act challenged and determined unconstitutional.
• 1979 - Handled by the supreme court of Canada. Official languages act deemed unconstitutional. (does not have the authority to post laws only in English. Invalid because unconstitutional.
• Did not have the authority to change the constitution.
• All the laws that were enacted only in english were nullified and invalidated due to the SCC decision. (everything past 1890)
• The declaration of invalidity of the Official Languages act was suspended for 1 year so that laws could catch up to prevent any issues with the rule of law. (vacuum of no law)

Ex. Fort Francis Pulp v. Manitoba Free Press, 1923

Who decides what emergency is?

Facts:

• Fed government seeking to regulate newsprint industry during early 1920s (treaty of versailles had not yet been signed, thus technically still in a state of war)
• Does the Fed gov have the jurisdiction to regulate supply and price of newspapers?

JCPC

1. Fed gov responsible with defining emergency.
2. But very clear evidence and convincing evidence required to justify federal intrusion on provincial powers.

Doesn't just have to be an emergency, but must be an emergency so extreme that it warrants fed intrusion into provincial powers.

Singh v. Canada (Minister of Employment and Immigration)

• Decision: Where serious issues of credibility are involved, issues must be heard in an oral hearing

Principles of Natural Justice

• Audi Alterum Partem - To hear the other side. (Owed Natural Justice Protections
• The entitlement to receive notification regarding decisions made about them
• Representation: Entitled to participate in the decision making process (represent themselves
• Written Reasons: Entitled to written reasons for decisions made regarding them
• Disclosure: Disclosure of the information relied upon by the litigating party
• Oral Hearing: The right to appear in person before a decision maker.
• Cross Examine: Right to question witnessed
• Right to Counsel: Right to have a lawyer to make arguments
• Legally Trained Decision Maker: Decision makers must be sufficiently trained
• Full Court

Baker v. Minister of Immigration

• Bias
• Overstayed visa, IRB denied, SCC appealed bc the IRB writeup indicated bias (not remitted, instead somehow appealed)
• After Kenny interview, Roma refugee acceptance went from 97% to 0.1% almost immediately after.
• If there is an expectation that a decision was not made entirely independently

National Football League v. Canada

• CRTC wanted to regulate super bowl commercials
• SCC

Stage 1: Determine the Standard of review

• Begins with the Presumption of Reasonableness (Presume will use the reasonableness standard)

But, there are two exceptions where the reasonableness standards use by courts will be rebutted/refused

1. Legislative intent(Whether or not the legislature intends for the court to use the correctness standard for this procedure) (Legislative intent found in the tribunals empowering statute)

Where is Legislative Intent found in legislation?

First we look for explicit statements, then we look for implicit statements that indicate the right of appeal.

- Explicit statements found in the statute. Such as (A correctness standard must be used when)

- Implicit Statements:statutory appeal (Decisions of this tribunal may be appealed to a higher court)

Does the empowering statute of the tribunal indicate that a standard of review other than reasonableness should be used?

Yes > Use correctness SOR

No > Continue to presume reasonableness SOR