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51 Cards in this Set
- Front
- Back
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What is the "second pillar" of procedural fairness? |
Impartiality |
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What are the two elements of impartiality? |
Individual impartiality: decision-maker must be free from individual bias Institutional impartiality: tribunal/agency must not be structured to suggest that its decisions favour one party over another |
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What is Bias? |
An interest, attitude, relationship, or action that leads a decision-maker to favour one party over another |
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What is a reasonable apprehension of bias? |
appearance of bias to a reasonable, well-informed observer |
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In the case of tribunals, what two impartiality components are required? |
1. decision-maker must start the hearing with an open mind and must reserve judgement until all evidence and arguments have been presented -individual bias 2. the tribunal itself must be reasonably independent of any government agency that is party to the hearings - institutional bias |
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What are the elements of institutional bias? |
- The Impartiality of a decision-maker is determined by examining their state of mind - The Independence of a tribunal is a matter of its status |
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What are the statutory exceptions to institutional bias? |
a built-in bias will be acceptable if it is required by statute and not unconstitutional |
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The reasons the court says it needed to change the law: VAVILOV |
1. It needs to clarify the standards of review and when they will apply 2. It needs to inform judges how to properly apply the standard of reasonableness to administrative law cases |
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What was the decision of the majority in VAVILOV? |
The SCC instructs the judges across Canada to come to judicial review cases with a presumption that reasonableness standard will apply to those cases |
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What are the five circumstances where the reasonableness standard can be replaced by the correctness standard? |
1. THE LEGISLATURE SAYS OTHERWISE 2. THERE IS AN APPEAL MECHANISM MENTIONED IN THE LEGISLATION 3. RULE OF LAW – CONSTITUTIONAL QUESTION 4. RULE OF LAW – QUESTION OF CENTRAL IMPORTANCE TO THE LEGAL SYSTEM 5. RULE OF LAW – JURISDICTIONAL BOUNDARY DISPUTE BETWEEN TWO+ AGENCIES |
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What are the major arguments made by the dissenting judges in the Vavilov decision? |
- courts no longer look at specialized expertise of decision-makers - negatively impacts access to justice - not following stare decisis (rule of law) - right to appeal and standard of review are not the same thing - strips decision-makers of deference |
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What must decision-makers do when making their decisions? |
- Decisions have to be transparent, intelligible, and justified - Reasons for the decision must address the issues and concerns raised by the parties - The reasons must justify the decision that was reached |
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Under the reasonableness standard, who is the onus/burden of proof on? |
- Onus is not on the decision-makers to show their decision is reasonable - Onus is on the party appealing the decision to show that the decision was unreasonable |
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What happens in an administrative decision when a statute mentions an appeal? |
the correctness standard will automatically apply |
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What are the two ways to challenge a tribunal decision in court? |
Appeals: - statutory time limit - permitted only where authorized by statute - only final decision may be appealed - party must appeal before judicial review Judicial review: - 30 day time limit in ON - divisional court only - courts discretion to accept applications |
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What are the common grounds for challenging administrative decisions? |
If the agency... - acted outside its jurisdiction - failed to take an action legally obligated to take - improperly delegated a decision - failed to consider options it was obliged to - misinterpreted applicable law - acted in bad faith - failed to follow fair procedures |
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What is a privative clause? |
attempts to restrict or prevent review by court of actions/decisions of an agency - are rarely successful in practice |
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What is a stay, and the test for granting it? |
Stay: an order issued by a tribunal/court suspending the decision being challenged Test: - there is a serious issue to be determined - irreparable harm will be suffered if not granted - balance of convenience favours granting stay |
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Who may appeal or seek judicial review? |
- parties in a tribunal proceeding (usually) - intervenors may apply (court discretion) - applicant has direct or substantial interest |
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Prior to Vavilov, how did courts determine the standard of review? |
High deference = reasonableness Low deference = correctness |
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What is deference? |
a court's willingness to accept a decision of an agency rather than substitute a decision of its own |
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Which exception to the reasonableness standard were the dissenting judges worried about most? |
appeal mechanisms/appeals |
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Is case law before vavilov is still relevant to deciding the Standard of Review? |
no lol |
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What is reconsideration? |
the procedure established by a tribunal to review its decision when a party provides evidence or argument that the decision may be wrong or unreasonable; also called "rehearing" or "reopening" |
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Reasonable vs Correct decision |
Reasonable = decision is based on a logical chain of reasoning Correct = decision is the only right answer in light of the law and facts |
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When may a court intervene in a decision? |
to safeguard legality, rationality, and fairness |
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What is conduct that may amount to contempt during a hearing? |
- Disruption of the proceeding - Failure of participant to carry out undertaking - Failure of witness to obey a summons - Failure of party to obey valid order of tribunal - Statements by parties to media intended to influence outcome of hearing |
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What methods can be used to control the conduct of hearings? |
- Power to bar a representative - Power to compel witnesses - Power to prevent abuse of process - Power to maintain order - Power to award costs |
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Represented vs Unrepresented parties |
If represented: adjudicator may make representative responsible for client's conduct If unrepresented: adjudicator may choose to let party express anger rather than enforcing standards of procedure |
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How do you deal with abusive participants during a hearing? |
"Three strikes & you're out" rule - stop the individual who is speaking, warn them that their behaviour will not be tolerated - if behaviour continues, warn the individual that they will be asked to leave if they continue - if the individual ignores the warning, ask them to leave the proceeding |
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What is a closed (in camera) hearing? |
a hearing where no one but the parties, representatives, and tribunal members and staff are permitted |
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What is ex parte communication? |
"on one side only"; refers to a statement or application made to an adjudicator or panel member by a party to a proceeding in the absence of other parties or panel members - prohibited in tribunal proceedings |
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What is fraternization? |
friendly social interaction; refers to social relationships between tribunal members and actual or potential participants in a proceeding |
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Can tribunal members discuss cases with the media? |
no, tribunal members should not discuss any current or future cases with the media |
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What takes place during the decision-making process? |
In administrative agencies, decision-makers: - identify the issues to be settled - obtain relevant information from the person who will be directly affected by the decision - apply agency's policies, guidelines, or criteria to the facts - consult others whose interests may be affected |
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What happens if one or more members disagrees with the majority on a decision? |
most tribunals will allow the minority to write a dissent (a disagreeing opinion) |
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What are the three possible solutions if there is an even number of members that agree and disagree with the decision? (a tie) |
- Governing statute may require a unanimous decision - Governing statute may provide for a tie-breaking vote - If first two don't apply, hearing must be held again |
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What is the difference between tribunals and administrative agencies? |
tribunals differ from administrative agencies in the kind of information they can rely on for decision-making |
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What kind of information do administrative agencies rely on for decision-making? |
Admin agencies: decision-makers can rely on any relevant information; but may be required to disclose basis for their decision and give affected persons an opportunity to challenge it |
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What kind of information do tribunals rely on for decision-making? |
Tribunals: decision-makers can only base decisions on evidence obtained during the hearing, excluding: - commonly known facts that are not disputed by reasonable people - specialized knowledge that is inherently uncontroversial |
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What kind of remedies may a tribunal enforce? |
Remedies limited to those authorized by tribunal's governing statute: - usually reflect purpose of the proceeding - usually forward-looking rather than punitive (i.e., orders to carry out or cease some activity in the future, rather than require compensation or restitution) |
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What should be set out when giving reasons for a decision? |
- the issue(s) addressed in the case - a summary of the evidence - findings of fact based on the relevant evidence - statement of law and any applicable policies and guidelines |
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What section of the SPPA contains enforcement provisions? |
section 19 |
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Who may apply for enforcement of an order? |
generally, a party who will benefit from the decision must take action to enforce an order |
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What are the three main mechanisms for enforcement? |
- treating as an order of civil court and using civil procedures to obtain compliance - treating as an offence and prosecuting the violator in a criminal proceeding - treating as contempt and initiating contempt proceedings in superior court |
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How is a civil court order enforced? |
- party can start enforcement steps immediately after tribunal order (e.g., demand letter) - statute may deem tribunal's order to be a court order; if not, injured party or tribunal must apply to civil court |
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How is a prosecution as an offence enforced? |
- a statute may provide that failure to obey a tribunal's order is an offence - party who will benefit from the order, the govt, or others may prosecute the violator - prosecution involves laying the charge and proving violation in criminal court |
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What is an injunction and when is it used? |
anorder issued by a court requiring a person to perform some act or refrain from some conduct that is harmful to the partywho seeks relief - used where person violating tribunal order is not a government decision-maker |
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What is a prohibition and when is it used? |
anorder issued by a court in an application for judicial review requiring aperson to refrain from some conduct harmful to the party who seeks relief - used in applications for judicial review |
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What is a mandamus and when is it used? |
an order of a court to a governmental official, department,or agency compelling the performance of a public duty - used in applications for judicial review |
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What is a declaration and when is it used? |
ajudgment issued by a court stating that a government authority is violating thelaw - used when mandamus is not available |
