By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Wednesday
Dec282016

Administrative Law

Podcast 1: The Administrative Law Mantra

This podcast defines "administrative law" and proposes a simple "mantra" for understanding administrative law's core preoccupation. It also discusses the historic case of Roncarelli v. Duplessis. Although procedurally not an administrative law case (this was an action for damages), the wrongdoing in Roncarelli v. Duplessis stems from an administrative act and that wrongdoing serves as a means to illustrate the undergirding preoccupations of administrative law and its relationship to other concepts, such as the rule of law.

Download the podcast here. Or listen to it here.  This first half of the podcast doesn't have quite the same sound fidelity as the second half, or later podcasts.  (I switched to a better microphone halfway through).  It is, however, still clear (if a bit tinny).

Screencast 1: Refresher on the Foundations of Canadian Public Law

Before delving into the minutiae of administrative law, it is important to situate the subject in the broader class of Canadian public law.  This screencast briefly (and very superficially) traces a 1000 year history of Anglo-Canadian public law as a reminder of core doctrines such as parliamentary supremacy, rule of law, constitutionalism, and federalism.

You may download a larger version of this screencast here (55 MB).

Screencast 2: Refresher on Separation of Powers, Delegation and Judicial Review

This screencast picks up on screencast 1 and probes more deeply the concept of separation of powers, focusing on the concept of delegation by Parliament to the executive and on the concepts undergirding judicial review of administrative action. 

Podcast 2a: The Seven Steps to Administrative Law Wisdom, Part 1

This podcast continues the introductory material to administrative law by describing a "seven step" or "seven question" means of approaching the subject.  I have no recollection of where this seven step idea came from (it may be from when I learned administrative law), but it works as a sort of "table of contents" to administrative law.  This podcast deals with the "3 Question Approach to the Exercise of Delegated Power", and focuses on three questions/steps: 1. To whom is the power delegated; 2. What is the nature of the power delegated; 3.  How is the power to be exercised (and within this third question examines two sub-issues: what procedural standards must be observed? and what substantive standards must be observed?).

The podcast may be downloaded here.  Or it may be listened to here.

Podcast 2b: The Seven Steps to Administrative Law Wisdom, Part 2

This is the second podcast on the "seven steps".  This podcast focuses on the last four questions: the Four Question Approach to the Control of the Exercise of Delegated Power.  To wit: 1. Who exercises the control? 2. What procedure must be followed in seeking to control the exercise of delegated power? 3. On what grounds is control exercised? 4. What relief can be granted?

You may download the podcast here.  Or you may listen to it here.

Screencast 3: Overview of Procedural Entitlements

An overview of procedural entitlements in Canadian administrative law. This screencast is a "road map" or "table of contents" for the more detailed lessons to follow on procedural entitlements.

Podcast 3: Origins of Common Law Procedural Obligations

This podcast provides an historical overview of concepts such as natural justice and procedural fairness.  It discusses cases like Dr. Bentley's Case, Cooper v. Board of Words, Ridge v. Baldwin, Nicholson, Martineau and Cardinal.  This history should be listened to before you turn to a discussion of the modern triggers for common law procedural fairness.

You may access and download the podcast here.

The podcast also refers to Faghihi v. Canada (Minister of Citizenship and Immigration), [2000] 1 FC 249, aff'd 2001 FCA 163.  This case is not assigned for this year, but if you wish to read it, it is located here.

Podcast 4: Common Law Procedural Fairness "Triggers"

A closer focus on the precise tests "triggering" the application of common law procedural fairness, divided into a discussion of Knight v. Indian Head "three prong" and the doctrine of legitimate expectation.  In addition to the key readings of Knight and Mavi, cases mentioned in passing include Abel (1979), 97 DLR (3d) 304 (ONCA), Irvine, [1987] 1 SCR 181, Dairy Producers, [1994] 4 WWR 90 (Sask QB), Hutfield, (1986) 24 Admin LR 250 (Alta. QB), Old St. Boniface, [1990 3 SCR 1170, Hong Kong v. Shiu, [1983] 2 All E.R. 346, Libbey, (1999), 42 OR (3d) 417 and Mont Sinai, 2001 SCC 41.

To listen to and download the podcast, click here.

Podcast 5: Exceptions to Common Law Procedural Fairness

A continuation of the discussion on common law procedural fairness, focusing on circumstances in which it is not triggered.  Cases mentioned include Martineau,[1980] 1 S.C.R. 602, Inuit Tapirisat, [1980] 2 S.C.R. 735, NAPO, [1989] 3 F.C. 684 (FCA), Canadian Shipowners Association (1995) 103 F.T.R. 170, Canadian Association of Regulated Importers (1993), 62 F.T.R. 172 (rev'd, but not on this issue, [1994] 2 F.C. 247 (FCA)), Vancouver Island, [1994] 1 F.C. 102, Homex, [1980] 2 S.C.R. 1011 and Walpole Island First Nation (1996), 31 O.R. (3d) 607 (Div. Ct).

Click here to access the podcast.

Podcast 6: The Charter and the Bill of Rights

Section 7 of the Charter and Sections 1 and 2 of the Bill of Rights as sources of procedural obligations in Canadian administrative law.  Cases mentioned include: Wells, [1999] 3 S.C.R. 199; Howard, [1984] 2 F.C. 642 (FCA); Singh, [1985] 1 S.C.R. 177; Smith, Kline & French Laboratories, [1986] 1 F.C. 274 (FCTD). Read Dehghani, [1993] 1 S.C.R. 1053 and Blencoe, [2000] 2 S.C.R. 307.

Click here to access the podcast.

Podcast 7a: Audi Alteram Pt I

An introduction to the content of procedural fairness, focusing on core ingredients and the idea that the precise components of those ingredients may be expressed differently depending on the context.  An brief examination of "content" test in the Baker case.  A discussion of notice and disclosure as aspects of audi alteram partem.  Read the core readings of Baker, Suresh and Charkaoui.  Other cases mentioned in the podcast include: Gallant, [1989] 3 F.C. 32 (FCA); Central Ontario Coalition (1984), 10 D.L.R. (4th) 341 (On Div Ct); Ciba-Geigy, [1994] F.C.J. No. 884 (FCA); May, 2005 SCC 82.

Click here to access the podcast.

Podcast 7b: Audi II

A continuation on the discussion of audi (right to be heard). Be sure to read: Ellis Don.

Other cases mentioned in the podcasts include: Patel v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1423 (FCTD); IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282.

 

Click here to access the podcast.

Podcast 8: Nemo Judex 

A discussion of the second major content area in admin procedural law: the right to an unbiased decision maker.  Be sure to read: Newfoundland Telephone, Ocean Port, Bell.

Other cases mentioned in the  podcast include: Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952 (not assigned to read this year); Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 36; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170;  Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 1213; Re Energy Probe And Atomic Energy Control Board (1984), 15 D.L.R. (4th) 48 (FCA); Re E.A. Manning Limited et al. and Ontario Securities Commission (1995), 23 O.R. (3d) 257 (OCA); Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3.

Click here to access the podcast.

Screencast 4: Segue from Procedural Entitlement to Judicial Review

This short screencast explains why we segue in the course structure from procedural entitlements to a discussion of judicial review and only then discuss substantive obligations.

Screencast 5: Grounds of Review and a Brief History of Substantive Review

This screencast describes what is meant by "grounds of reivew" and then focuses on the history of court judicial review approaches to substantive grounds of review: namely, errors of law, errors of discretion and errors of fact.  This is all background necessary to understanding the modern approach to substantive review discussed in podcast 9.

Podcast 9: Dunsmuir and the Modern Standard of Review Approach

A discussion of the modern approach to standard of review for substantive grounds of review (fact, law, discretion).  Among the cases mentioned that were not among the assigned reading are: Khosa, 2009 SCC 12; Doré, 2012 SCC 12.

Click here to listen to or download the podcast.  Remember, if you listen to the podcast online it will take a few minutes for the podcast to download after you click on the play arrow, depending on your download speed.

For 2016, I have prepared a Podcast 9a supplementing this podcast and covering (relatively minor) developments since podcast 9 (those arising in 2015 and late 2014 in the area of substantive review). Case referred to in Podcast 9a are: Mouvement laïque québécois v. Saguenay, 2015 SCC 16; B010 v. Canada, 2015 SCC 58; CBC v. SODRAC, 2015 SCC 57; Tervita Corp. v. Canada, 2015 SCC 3; ATCO Gas and Pipelines Ltd. v. Alberta, 2015 SCC 45; Quebec v. Bombardier, 2015 SCC 39; Canadian National Railway Co. v. Canada, 2015 SCC 39.

Podcast 10: Remedies

A discussion of remedies on statutory appeal, remedies on judicial review and the issue of actions for damages, as collateral actions separate and apart from judicial review.  Cases mentioned include the assigned case of Telezone.  Other cases mentioned include: Odhavji Estate v. Woodhouse, 2003 SCC 69.

Click here to listen to or download the podcast.

Exam Writing Podcast

Please see my post and podcast on exam writing tips.