NCA Administrative Law cheat sheet

Administrative Law

• The NCA administrative law syllabus covers four areas: procedural fairness and the duty to act fairly; the grounds of judicial review (illegality, irrationality, procedural impropriety, and, in Canada, jurisdictional error and abuse of discretion); the standard of review; and remedies and the scope of judicial intervention.

• In Canada, s. 2(e) of the Canadian Bill of Rights and the common law duty of fairness apply to administrative decisions affecting individual rights, privileges, or interests; the duty to act fairly is a common law duty, not a constitutional one, per Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

• The duty of fairness is triggered by a decision that affects the rights, privileges, or interests of an individual, and applies to all administrative bodies exercising statutory powers; the content of the duty varies with the nature of the decision, the statutory scheme, the importance of the decision to the individual, the legitimate expectations of the individual, and the choices of procedure made by the agency itself (Baker).

• The five factors from Baker v Canada for determining the content of procedural fairness are: (1) the nature of the decision and the process followed; (2) the statutory scheme; (3) the importance of the decision to the individual; (4) the legitimate expectations of the person; and (5) the choices of procedure made by the agency itself.

• The three grounds of judicial review articulated in Council of Civil Service Unions v Minister for the Civil Service, [1985] AC 374 (the GCHQ case) are illegality, irrationality (Wednesbury unreasonableness), and procedural impropriety; Canadian law adds jurisdictional error and abuse of discretion (including bad faith, improper purpose, and irrelevant considerations).

• In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the Supreme Court of Canada established that the presumptive standard of review is reasonableness, with correctness applying only to constitutional questions, questions of central importance to the legal system, and certain statutory appeal mechanisms; the court also clarified that the reasonableness inquiry asks whether the decision is internally coherent and bears the hallmarks of justification, transparency, and intelligibility.

• The standard of review in Canada is determined by the Vavilov framework: a rebuttable presumption of reasonableness applies, and the presumption is rebutted by a legislative intent that correctness apply, such as statutory language, a statutory appeal mechanism, or a question of law of central importance to the legal system.

• Judicial review remedies in Canada include the prerogative writs: certiorari (quashing a decision), prohibition (restraining a decision-maker), mandamus (compelling performance of a duty), and quo warranto (challenging the authority to hold office); declaratory and injunctive relief are also available under s. 18 of the Federal Courts Act and provincial equivalents.

• In Canada, the standard of review analysis is not a two-step process of first identifying the standard and then applying it; Vavilov directs reviewing courts to consider the decision-maker's reasons as a whole and to assess whether the decision is justified, transparent, and intelligible, and whether it falls within a range of possible, acceptable outcomes defensible on the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, as refined by Vavilov).