PRINCIPLES OF ADMINISTRATIVE LAW [PDF]

PRINCIPLES. OF. ADMINISTRATIVE. LAW. Fifth Edition by. David Phillip Jones, Q.C.. B.A.(Hons.) (McGill), B.C.L., M.A. (Ox

3 downloads 10 Views 268KB Size

Recommend Stories


ADMINISTRATIVE LAW CASE DIGESTS [PDF]
4670 and. Presidential Decree (P.D.) No. 807, respectively. OMBUDSMAN vs.HEIDI M. ESTANDARTE. G.R. No. 168670 April 13, 2007. On August 17, 1998, People's .... R.A. 8291, states: (b) All service credited for retirement, resignation or separation for

Administrative Law
Sorrow prepares you for joy. It violently sweeps everything out of your house, so that new joy can find

Parliament and Administrative Law
Don’t grieve. Anything you lose comes round in another form. Rumi

Constitutional and Administrative Law
If you want to go quickly, go alone. If you want to go far, go together. African proverb

Texas Administrative Law
You're not going to master the rest of your life in one day. Just relax. Master the day. Than just keep

Global Administrative Law
And you? When will you begin that long journey into yourself? Rumi

Constitutional and Administrative Law
We can't help everyone, but everyone can help someone. Ronald Reagan

administrative procedure law
At the end of your life, you will never regret not having passed one more test, not winning one more

1 administrative law
I want to sing like the birds sing, not worrying about who hears or what they think. Rumi

fundamental principles of family law
The happiest people don't have the best of everything, they just make the best of everything. Anony

Idea Transcript


PRINCIPLES OF ADMINISTRATIVE LAW Fifth Edition by

David Phillip Jones, Q.C. B.A.(Hons.) (McGill), B.C.L., M.A. (Oxon.) and

Anne S. de Villars, Q.C. B.Sc. (Southampton), LL.B. (Alberta) both of de Villars Jones Barristers and Solicitors Edmonton

2009

CARSWELL®

© 2009 Thomson Reuters Canada Limited

NOTICE AND DISCLAIMER: All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written consent of the publisher (Carswell). Carswell and all persons involved in the preparation and sale of this publication disclaim any warranty as to accuracy or currency of the publication. This publication is provided on the understanding and basis that none of Carswell, the author/s or other persons involved in the creation of this publication shall be responsible for the accuracy or currency of the contents, or for the results of any action taken on the basis of the information contained in this publication, or for any errors or omissions contained herein. No one involved in this publication is attempting herein to render legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein should in no way be construed as being either official or unofficial policy of any governmental body. ISBN 978-0-7798-2126-6 (bound).-ISBN 978-0-7798-2127-3 (pbk.)

A cataloguing record for this publication is available from Library and Archives Canada. Printed in the United States. Composition: Computer Composition of Canada Inc.

THOMSON REUTERS

CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza 2075 Kennedy Road Toronto, Ontario M1T 3V4

Customer Relations Toronto 1-416-609-3800 Elsewhere in Canada/U.S. 1-800-387-5164 Fax: 1-416-298-5082 www.carswell.com E-mail www.carswell.com/email

6 INTRODUCTION: WHAT IS ADMINISTRATIVE LAW?

4. Delegation, Jurisdiction, and the Doctrine of Ultra Vires Judicial review is probably the most important means of controlling illegal governmental actions. To the extent that such actions may constitute wrongs otherwise known to law, the delegate will have to demonstrate some statutory provision authorizing it to take the impugned action. The delegate must be able to demonstrate that its actions fall squarely within the power granted to it by the Federal Parliament or the provinciallegislatures.lfit does not, its actions are ultra vires, that is, beyond the delegate's jurisdiction. Most of administrative law involves the close scrutiny of the jurisdiction or authority of a particular governmental official to do a particular action which affects the rights or interests of another person, and this inevitably involves the application of rules of statutory construction'? to determine precisely what the legislative branch meant to enact. "Jurisdiction" is a difficult term of art in administrative law, and has a number of different meanings. It is frequently very difficult to determine whether the legislation does grant a particular delegate the 'jurisdiction" to do the impugned act, or to do it in some particular way. Lack of jurisdiction makes the act ultra vires, and may make available a legal remedy. Chapter 5 examines both the concept of jurisdiction and the concomitant doctrine of ultra vires.

5. Grounds for Judicial Review The superior courts have the inherent power to review the legality of administrative actions. On the one hand, this power is the natural consequence of the courts' role to interpret the meaning of statutes, including determining the ambit of statutes which delegate powers to administrators. In other words, the courts decide which administrative actions are ultra vires. On the other hand, the superior courts have historically used the prerogative remedies 11 such as certiorari, mandamus, prohibition, quo warranto and habeas corpus to exercise supervisory jurisdiction over inferior courts and other tribunals. As a result, there is considerable judicial review of administrative action in Canada. "Judicial review" is not the same as an appeal. In general, the superior courts do not have the right to substitute their appraisal of the merits for any lawful action taken by an administrator. On the contrary, one of the conse10 See I.A. Corry, "Administrative Law and the Interpretation of Statutes" (1935) 1 U.T.LJ. 286. 11 The remedies are called "prerogative" because they were historically available at the instance of the Crown. Hence, all such applications were made in the name of the Crown, at the instance of the applicant. Therefore, the historical style of the cause is R. v. Commissioner of Police of the Metropolis, ex parte Blackburn, [1968] 2 Q.B. 118 (Eng. CA.). This nomenclature has fallen into disuse in Canada, and the current usage would style the same case as Blackburn v. Commissioner ofPolice ofthe Metropolis. See the historical discussion inBrewerv. Fraser Milner Casgrain LLP, 2008 ABCA 160 (Alta. CA.), at 13-26, additional reasons at 2008 ABCA 285 (Alta. CA.), affirmed (2008), 2008 CarswellAlta 1667 (S.C.c.).

Smile Life

When life gives you a hundred reasons to cry, show life that you have a thousand reasons to smile

Get in touch

© Copyright 2015 - 2024 PDFFOX.COM - All rights reserved.