In highly regulated fields and industries, participants are often under a statutory obligation to cooperate with the auditors, inspectors and peace officers who investigate contraventions of the applicable regulatory regime, typically comprised of an Act, Regulations and sometimes the terms of a licence. This coerced cooperation comes in many forms: from retaining and turning over records and documents, to permitting access for physical inspection, to answering probing questions. More often than not inspections occur without warning, and happen quickly before the individual or entity subject to inspection is fully able to take stock of the situation. While this element . . . [more]
Archive for the ‘Administrative Law’ Columns
As the old song goes, we all need somebody to lean on. However, we can’t always have somebody to stand with – or against – us. In administrative law matters, there are two aspects of standing. One is the ability of a decision making body to participate in or commence judicial review proceedings. The other, which is the focus of this article, is the ability of individuals or corporation to appear before a tribunal or in judicial review proceedings.
One of the fundamental tenets of natural justice and procedural fairness is the right to a hearing, whatever form that might . . . [more]
Administrative law as a practice area sometimes gets a bad rap for being comprised of Byzantine rules of procedure (often completely unique to the specific tribunal in question), frustrating decision makers, and shifting standards of review. The name itself “admin law” is also guilty of being a little boring, and is not nearly as descriptive as other practice areas like “criminal law” or “immigration law”. To the uninitiated, administrative law is a practice area that can come across as broad, dry, and overly technical. For those that feel that way, the profession has done you a disservice.
In practice, admin . . . [more]
1. Be careful what you ask for…
“Maybe it’s opposite day! Maybe all these X’s mean that my answers are correct! Maybe your “A” is really an “F”! That must be it! I win the bet!”
– Calvin, Calvin & Hobbes
To me, the suggestion that the topic of the Standard of Review is the great Canadian passion, at least for practitioners of administrative law, is firmly tongue in cheek. While I have acknowledged that the standard of review is at the heart of judicial review, there is so much more to administrative law. I would suggest that . . . [more]
Forget the business attire, forget the hearing room, and forget regular business hours. The future may even be dispute resolution in your pyjamas. Necessity being the mother of invention, an increasing need for better access to justice and the means for delivering it means that your home computer, laptop, or mobile device can serve as the place where disputes are resolved.
In Cooper v. Canada (Human Rights Commission),  3 SCR 854 at para. 10, Lamer CJ noted that the rise of the administrative state has been marked by the creation of institutions other than the courts. While Lamer . . . [more]
One of the predominant topics in any discussion about administrative law is standard of review. The standard of review is at the heart of judicial review proceedings. What I find much more interesting is standard of proof. The vast majority of administrative law decisions never go to judicial review, or even to an administrative appeal tribunal. The decision at first instance is often the final decision. From that perspective, the standard of proof is a far more important concept.
Statutory Standards of Proof
For administrative tribunals, the default is the civil standard of proof on the balance of probabilities, subject . . . [more]