FACTOID # 10: The total number of state executions in 2005 was 60: 19 in Texas and 41 elsewhere. The racial split was 19 Black and 41 White.
 
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Encyclopedia > Canadian administrative law

Canadian administrative law is the body of law in Canada addressing the actions and operations of governments and governmental agencies.[1] That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers (ADM) such as a board, tribunal, or minister. The body of law is concerned primarily with issues of substantive review (the determination and application of a standard of review) and with issues of procedural fairness (the enforcement of participatory rights). Standard of review is the view an appellate court gives to an issue on appeal. ...

Contents

Sources of law

The courts have no inherent power to review the decisions of an ADM. Rather a court may review a decision through a statutory appeal when the power is explicitly granted within the enabling statute that created the administrative body. The court is typically given full power to review errors of law. A court may also review a decision a matter of judicial review. The type of review is broader and allows for the court to consider the entire decision-making process. The power of judicial review is found either in the enabling statute or by virtue of the common law. The common law powers are derived from the four original writs of certiorari, prohibition, mandamus, and habeas corpus. It has been suggested that Mandate (law) be merged into this article or section. ... Judicial review is the power of a court to review a statute, or an official action or inaction, for constitutionality. ... In law, a writ is a formal written order issued by a government entity in the name of the sovereign power. ... This law-related article does not cite its references or sources. ... The term Prohibition, also known as Dry Law, refers to a law in a certain country by which the manufacture, transportation, import, export, and sale of alcoholic beverages is restricted or illegal. ... A writ of mandamus or simply mandamus, which means we order in Latin, is the name of one of the prerogative writs and is a court order directing someone, most frequently a government official, to perform a specified act. ... In common law countries, habeas corpus (/heɪbiəs kɔɹpəs/), Latin for you [should] have the body, is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. ...


These powers are also frequently limited by privative clauses within the statute. Typically they will declare the ADM's decision is "final and conclusive" and/or that the ADM has "exclusive jurisdiction" over the matter. The enforceability of these clauses is limited, however. In Crevier v. Quebec (1981) the Supreme Court held that the Constitution requires that the courts be able to supervise errors of ADMs and so the legislature cannot completely oust them from that power.


Substantive review

The courts' power of substantive review allows it to consider the content of an ADM's decision and decide whether is was sufficiently incorrect to warrant sending it back for reconsideration. Where a court has the power of substantive review it must undertake the review using a standard of review which dictates the amount of deference that the court should give to the ADM. The decision and the evidence are reviewed based on the appropriate standard of review for the circumstances. Standard of review is the view an appellate court gives to an issue on appeal. ...


Determining the standard of review is a particularly contextual process and can vary based on the type of ADM or even the specific matter at issue. The modern method to determine the standard of review is known as the "pragmatic and functional approach".[2] Its purpose is to determine the amount of review that the legislature intended. [3]


The determination is made based on four contextual factors:

  1. the presence or absence of a privative clause or statutory right of appeal;
  2. the expertise of the tribunal relative to that of the reviewing court on the issue in question;
  3. the purposes of the legislation and the provision in particular; and
  4. the nature of the question — law, fact or mixed law and fact

None of the factors are determinative and will vary in significance based on the circumstances. From these factors the courts will determine which of three standards of review will be applied. Where significant deference was intended the courts will review the ADM on the basis of patent unreasonableness. Where little or no deference is intended the ADM will be reviewed on a standard of correctness. In between these two standards is a standard of reasonableness (also called reasonabless simpliciter). In theoretical computer science, correctness of an algorithm is asserted when it is said that the algorithm is correct with respect to a specification. ...


Procedural fairness

Notes

  1. ^ David Mullan in "Administrative Law" (Irwin Law:Toronto, 2000) defines it as "the body of law that establishes or describes the legal parameters of power that exist by virtue of Statute or residual Royal prerogative." (p.3)
  2. ^ U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048
  3. ^ Pushpanathan v. Canada at para. 26; Dr. Q v. College of Physicians and Surgeons of British Columbia (2003) at para. 21
Law of Canada
v  d  e
Sources of law Constitution, federal statutes, provincial statutes
Core areas of law Constitutional law, Administrative law, Criminal law, Contract law, Tort law, Property law
Other areas of law Aboriginal law, Family law, Immigration and refugee law, Labour and employment law, Copyright law, Trade-mark law, Patent law
Courts Supreme Court, Federal Court (Appeal), Courts of Appeal, Superior courts, Provincial courts
Education Law school, Law School Admission Test, Call to the bar

 
 

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