1. Introduction to Judicial Review of Administrative Action
Judicial Review: review of administrative decisions or determinations made by someone who has the power and authority to make a certain set of decisions of determinations, but this person is not of the judiciary (typically part of the administration, which refers to all agencies, tribunals, commissions, ministers who have been delegated powers from statutes as acts of Parliaments or legislatures to deliver public goods or administer public programs). This includes immigration officers, competition tribunals, regulatory agencies (e.g. CRTC), labour boards, municipal counsels, …
Judicial Review vs. Appeal: Judicial review is concerned with legal errors and can be available when there is no leave for appeal. It is a review of the procedure and substance of the tribunal’s decision seeking the relief of a prerogative remedy.
· The lawfulness of a tribunal’s decision may be impugned by a challenge to procedure (natural justice) OR that the decision does not accord with the law (the empowering statute).
A decision of an administrative board may be reviewed on either two grounds:
· Process (Procedural fairness): that body of common law that requires a decision maker or an administrative tribunal to allow a person subject to their decision-making ability to reply to the case before them.
o Based on natural justice
o Has to do with process, not substance
o The decision-making body is given a certain amount of latitude, but idea that there is an inherent right of the reviewing body to review the procedure that was used.
o Courts will feel quite comfortable reviewing process issues (have the expertise, they have an as good or even better understanding of knowing what natural justice is)
· Substance: Review of the particular outcome that the decision-maker reached, and the reasons that the decision-maker gives for a particular determination.
o Whether the decision complies with the constitution
§ All the powers that are exercised are powers that are granted by statutes. As such, all of the exercises of power that emanate from the statutory authority have to be valid from a constitutional perspective that is, they have to be consistent with the Charter (Bill of Rights) and the BNA.
o Whether the decision-maker has acted within the bounds of the bounds that are contemplated by the Statute. Rand J. in Roncarelli : there is always a perspective with which a Statute is contemplated.
o There is no clear way to distinguish review of a particular decision on the basis of whether it is in excess of a jurisdiction, or whether it is the substance the court disagrees with.
o Courts are typically working with a model inherited by Dicey – in public law, the Parliament has a whole-sale monopoly of production of law, judges have a whole-sale monopoly of the application or interpretation of law of particular facts. Up to the 19th c., this model has more or less worked, at least in England, because there was not much administrative law around. In the early 19th c., the administrative state has start taking hold (distrust in the market for safe water, equitable operation of municipalities and other things in which the administrative state has started to develop).
o Over the course of the past 150 years, there has been undergoing tension between boards set up with authorities to decide on the issues before them (labour, immigration, compensation, etc.).
· All powers that are granted by the legislatures are by nature limiting powers.
· If a public official is given discretionary power, historically the approach has been, within the bounds of this discretion, the administrator is given the power to do whatever he wants.
· E.g. Roncarelli: in a state of civil unrest with Jehovah’s witnesses, the retaliation against a person who was supporting this movement, Premier Duplessis ordered that the liquor board cancel Roncarelli’s permit to sell alcohol. The cancellation of the liquor license drove Roncarelli out of business. On the face of the Statute, the Qc liquor authority had the authority to cancel or revoke a liquor license at its own discretion. That aspect of the Statute is underlined by Cartwright J. (the most interesting dissent). But SCC ruled against it. Rand J. (majority) has to overcome the Statute and history of common law / public law judicial review which says that when a discretionary grant of power is made to an administrative body, the latter can act within the bounds of this discretion.
· Rand J: What courts are developing is a common law history and background of concepts and ideas. Procedural fairness is a right of quasi-constitutional nature; so it does not matter whether a certain a specific procedure has been followed. Process / fairn
cence Act give Duplessis authority to revoke Roncarrli’s license? Was it within Duplessis’ rights to intervene?
Held: No. Appeal allowed (found for P).
Ratio:Rand J. (Cartwright J dissenting)
1. In a time of increasing public reg, such administration cannot act without impartiality and integrity, and grounds for refusal must not be incompatible with the purpose of the reg.
2. Nothing about the revocation was pertinent to the liquor license, the operation of a restaurant. R was denied a permit b/c he was exercising a civil right to post bail. It was meant to stop JW activities and punish R for the part he played, as well as warn others that they too would be stripped of provincial “privileges” if they participated in objectionable campaigns.
3. Discretion entails 1) good faith, 2) non-arbitrariness and 3) no fraud or corruption in discharging public duty. Therefore, the respondent’s action is a breach of public statutory duty, an abuse of legal power. The discretion of the commissioner is not absolute, it must remain within the bounds of the purpose of the statute. Duplessis, in instructing the commissioner, acted outside of his legal powers.
4. The rule of law, a fund postulate of the constitution, must be upheld in the face of expanding gvt regulation and the potential for exec abuses that it facilitates.
Look at the Statute. Js, in their role of legal interpreters, will first look at the words of the Statute to find whether or not the administrators exceeded their jurisdiction. In the Statute, the Commission is given wide-ranging powers for liquor licences in Qc. Wrt to cancellation of licences, the Statute simply says that the Commission can revoke the Statute at any time at its discretion. There is no restriction on the terms of revocation nor on the reasons of revocation.
