Admin Law summary

Topics: Law, Case law, Common law Pages: 61 (11264 words) Published: March 19, 2014
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PART I: INTRO
Context of Admin Law: Anglo-Canadian Constitutional History
Definition of Admin Law as discussed in class
 “admin law is about ppl getting screwed by gvt”
 power is exercised by public officials – esp exec (statute, or royal prerog)  Admin is control of that power
o Creates legal parameters – from cml, statute, constitution  Created by Cts (supervise), legislature (who delegate), and agencies themselves (use delegated power)
 Admin law also provides for relief, where use of power transgresses parameters Mantra
 “show me the power”
 Roncarelli v. Duplessis – Duplessis enacts laws banning various Jehova wit activities, Roncarelli is a Jehova’s wit and posts bail for offenders, Duplessis prosecutes for provoking and disturbing the order

 SCC: Rule of law (foundation of our Constitution) requires that law supersedes any “action dictated by the arbitrary likes, dislikes, and irrelevant purposes of public officials acting beyond their duty”

Historical Context
 History explains our funny rules, rather than logic (O.W. Holmes)  Key words: Parliamentary sovereignty & rule of law; executive power; delegation’ jurisdiction & ultra vires
 Monarch and cabinet (exec)  accountable to legs (Parl)  Absolute Monarch: William the Conqueror – personal control over state affairs – unfettered royal prerogative, except for physical capacity to enforce, ppl willing to follow  Shrinking Monarch: takes advice re taxes from Barons, great councils (land owners), and curia Regis (privy council) emerge;

 Barons impose Magna Carta  first parameter: monarch needs consent to impose taxes, freemen (ie, mercantile class) can only be punished by peers  By Edward I, Great Council becomes Parliament (Lords in HoL, and freemen in HoC): increase in wars, means Parlimament has more leverage

 Allows for legislative process: King can only say Yay or Nay – can’t change  Eventually, Habeus Corpus: monarch to show cause if imprisoning someone  Charles I: had not called Parl in a while – Scott war  needs to call, Parl obliges monarch to call Parl every 3 years

 Depose Charles I  Glorious Revolution  write down new rules for Parl Privilege, in Bill of Rts, 1689
 Parliament now sovereign – w/ residual prerogative powers  C19 – prerog powers, by convention, excercised by PM
In Canada:

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Constitution doesn’t say much
But preamble “a constitution in principle similar to that of UK” o SCC has imported UK history  cabinet exercises residual prerog powers Constitutional restraints:
Separation of powers – Fraser v. Canada: legislature, exec, and judiciary o But much overlap
o John Locke – questions whether appropriate to delegate once the ppl have chosen their representative – consent of consitutents does not pass along Division of powers – btw prov and fed
Charter – restrains outer bounds

Executive Powers – ultra vires, if can’t trace back to:
1. Powers delegated by legislature (in statutes)
2. Prerogative powers
3. Constitutional powers granted to GG/LG
Delegation



Policy (Wagner v. Williams): MP’s can’t take care of minutiae  need administrators and bureaucrats
o Also, may be less political, ex: w/ arm’s length agencies Yes Minister: more experience and qualified ppl to take up that work, keep legislators at high-level, less involved

Delegation constraints  not many
 Parl can only delegate powers that it has
o Cannot delegate powers that are ultra vires, or violate the Charter  Parl cannot delegate to prov legislatures, and vice versa – AG(NS) v. AG(Can) o But can delegate to officials on other side – PEI Potato Marketing  Powers of taxation  HoC only (s. 53 Constitution Act) – can’t delegate  Parl cannot surrender its powers to the exec – can withdraw it at a later time o Re Gray – War Measures Act – broad powers to exec, but still did not amount to abdication (thus hard to imagine it ever would)

 Delegated powers must not be unconstitutionally vague
o...
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