Canadian administrative law

[3] The common law powers are derived from the four original writs of certiorari, prohibition, mandamus and habeas corpus.

Prior to the landmark decision of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65,[5] courts would undertake highly-contextual standard of review analyses.

A court would consider precedents, the relative expertise of the decision maker in question, the nature of the issue in dispute and the content and context of the governing legislation.

[6][7][8] Reasoning from these factors, the court would determine the level of scrutiny that it would apply in the review of the particular administrative decision in issue.

[5]: 47  In so doing, the Supreme Court of Canada sought to give greater effect and meaning to the express statutory right of appeal, which is understood to be the key factor representing legislative intention on the standard of review to be applied in judicial review of an administrative decision.

[5]: 39  The presence of an express statutory right of appeal in the enabling statute is understood to mean that the legislature intended the courts to play an appellate role, and apply a less deferential standard of review.

The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.

[17] Patent unreasonableness was the highest level of deference that the court could previously give to a decision maker, before it was abolished.

[18] A number of provincial statutes, most notably British Columbia's Administrative Tribunals Act, continue to adopt the patent unreasonableness standard.

The test is:[22][23] According to Canadian Union of Public Employees v Ontario (Minister of Labour),[24] if the promise is clear, unambiguous and unqualified representation as to a procedure, then it creates a legitimate expectation.

[25] The duty can only be invoked where the circumstances satisfy a threshold based on three factors set out by the Supreme Court in Knight v Indian Head School Division No 19.

There are five factors that affect the content of this duty:[30] With respect to discretion, historically, the standard of review for discretionary decisions applied by the courts was that of correctness.

However, this changed in Baker where the Supreme Court of Canada emphasized the awkward line between questions of law and discretion.

[31] This is derived from the natural justice principle of nemo judex in sua causa, or the right to be judged impartially.

Traditionally, the exercise of discretionary powers is reviewable on a variety of bases, such as improper purposes, irrelevant considerations, fettering of discretion, subdelegation and bad faith.

[33] Common law principles of fairness may be ousted or overruled by the legislature “by clear and explicit language.” However, when confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal’s process to comport with principles of fairness and natural justice.

[34] Because administrative tribunals perform a variety of functions, they “may be seen as spanning the constitutional divide between the executive and judicial branches of government.” Some administrative tribunals are closer to the executive end of the spectrum: their primary purpose is to develop, or supervise the implementation of, particular government policies.

Other tribunals, however, are closer to the judicial end of the spectrum: their primary purpose is to adjudicate disputes through some form of hearing.