question
Toronto city councillors have voted to strip Mayor Rob Ford of most of powers he held as mayor.
T or F
T or F
answer
True
question
In his role of Deputy Mayor of the City of Toronto, Norm Kelly now has all powers and duties which are assigned to the mayor by statute.
T or F
T or F
answer
False
question
As a result of criminal charges incompatible with his office, Rob Ford has been forced to resign his seat as muncipal city councilor for Ward 2 Etobicoke North.
T or F
T or F
answer
False
question
The City of Toronto Act grants the Mayor of Toronto powers that council cannot take away.
T or F
T or F
answer
True
question
Because the City of Toronto forms its own government, the provincial government of Ontario is legally incapable of intervening in municipal affairs.
T or F
T or F
answer
False
question
There is no appeal from HRTO decisions, although the HRTO is subject to judicial review.
T or F
T or F
answer
True
question
When a worker suffers an accident or illness, the worker's employer has three days to:
answer
file a form with the WSIB documenting the situation
question
Section 17(1) of Ontario's Statutory Powers Procedure Act requires that a tribunal must always provide written reasons.
T or F
T or F
answer
False
question
Only tribunal members who heard a case may make the decision.
T or F
T or F
answer
True
question
What is the term used to describe the procedure whereby a tribunal reviews its own decision after a party provides argument or evidence that the decision was wrong or unreasonable?
answer
reconsideration
reopening
rehearing
reopening
rehearing
question
Tribunals are not permitted to amend their decisions unless given authority to do so by statute.
T or F
T or F
answer
False
question
According to the Supreme Court of Canada, when does procedural fairness require tribunals to give reasons for their decisions?
answer
where the outcome will seriously affect the rights of an individual
question
Section 17(1) of Ontario's Statutory Powers Procedure Act requires that a tribunal must always provide written reasons.
T or F
T or F
answer
False
question
If there are an odd number of members on a tribunal's panel, the general rule is that the decision of the majority is the decision of the tribunal.
T or F
T or F
answer
True
question
Both the WSIB and the Workplace Safety and Insurance Appeals Tribunal are subject to the Statutory Powers Procedure Act.
T or F
T or F
answer
False
question
Ontario's Human Rights Code applies to both provincially and federally regulated departments and agencies.
T or F
T or F
answer
False
question
The Landlord and Tenant Board was established under the Residential Tenancies Act, 2006.
T or F
T or F
answer
True
question
It is often cheaper for a complainant wishing to challenge a decision to apply to a court than to seek an internal review.
T or F
T or F
answer
False
question
A stated case is a request by a tribunal to a court to give its opinion on a question of law formulated by the tribunal.
T or F
T or F
answer
True
question
What phrase is defined as 'harm that cannot be quantified in money terms or cannot be rectified by payment of compensation for the harm suffered'?
answer
irreparable harm
question
Patent unreasonableness is a standard of review only where a statute explicitly provides for its application.
T or F
T or F
answer
True
question
An employer can challenge a claim for support or rehabilitation brought before the WSIB.
T or F
T or F
answer
True
question
If parties to a complaint before the HRTO have already been through mediation, the same tribunal member who conducted the mediation will conduct the hearing.
T or F
T or F
answer
False
question
Adjudicators can never rely on legal authorities not included in the evidence presented at the hearing.
T or F
T or F
answer
False
question
If there is nothing specified in any statute, what must a regulator do if he or she obtains legal advice about a case in process?
answer
nothing — there is no duty to inform the parties
question
Only tribunal members who heard a case may make the decision.
T or F
T or F
answer
True
question
An applicant for judicial review must have a financial or property interest in an issue in order to qualify for public interest standing.
T or F
T or F
answer
False
question
A stated case is a request by a tribunal to a court to give its opinion on a question of law formulated by the tribunal.
Selected Answer:
T or F
Selected Answer:
T or F
answer
True
question
Privative clauses have had little effect in preventing judicial review.
T or F
T or F
answer
True
question
If a decision is attacked on the grounds that procedural fairness was violated, courts do not need to establish a standard of review.
T or F
T or F
answer
False
question
The decision-making process of tribunals is less rigorous than that of other governmental agencies.
T or F
T or F
answer
False
question
The Ontario Workplace Safety and Insurance Board (WSIB) is funded by the provincial government.
T or F
T or F
answer
False
question
Complainants may either bring their case to the CHRC or apply directly to the CHRT.
T or F
T or F
answer
False
question
When applying the correctness standard of review (post-Dunsmuir v. New Brunswick), a court will not show any deference to the decision-maker's reasoning process.
T or F
T or F
answer
True
question
In Ontario, an application for judicial review automatically stays the decision in question.
T or F
T or F
answer
False
question
Dissent
answer
- different opinion than the majority
- allowed to give reasons for different opinion
- could agree on outcome, just had different reasons of getting there
OR
- could disagree with outcome
- may not be useful today, but could be useful to a decision in the future
- allowed to give reasons for different opinion
- could agree on outcome, just had different reasons of getting there
OR
- could disagree with outcome
- may not be useful today, but could be useful to a decision in the future
question
Order
answer
- decision made by adjudicator or tribnal
- interim order
- interlocutory order
(when there are still questions to be answers, in the mean time use these orders...)
- FINAL order (when there are no more questions to be answered)
- interim order
- interlocutory order
(when there are still questions to be answers, in the mean time use these orders...)
- FINAL order (when there are no more questions to be answered)
question
Remedy
answer
the corrective action taken by administrative body
- damages
- restitution
- reinstatement
- apology
- rehabilitation
- damages
- restitution
- reinstatement
- apology
- rehabilitation
question
Reserve
answer
"i don't have an answer right not, give me a few minutes/days and i will decide"
time taken to decide is the reserve
time taken to decide is the reserve
question
what can you do if the decision is taking too long?
Delay
Delay
answer
- can go to court and ask them to make a decision
- can write a nice letter
- can go to a court and get an order for the tribunal to make a decision (but not recommended)
- can write a nice letter
- can go to a court and get an order for the tribunal to make a decision (but not recommended)
question
If a panel of three adjudicators holds a hearing and one of them disagrees with the decision of the other two, how will the tribunal deal with this situation?
answer
SPPA s 4.2(3)
if uneven #, majority rules
dissenting opinion could write their opinion
if only 2 panellists, unanimous req'd
if uneven #, majority rules
dissenting opinion could write their opinion
if only 2 panellists, unanimous req'd
question
In making a decision, may an adjudicator take into account information other than evidence presented during the hearing?
answer
Yes, facts that are so commonly known to that they are not disputed by a reasonable person (judicial notice)
facts that can be immediately and accurately demonstrated by reference to readily available and reliable sources.
facts that can be immediately and accurately demonstrated by reference to readily available and reliable sources.
question
If an adjudicator is considering relying on facts not presented at the hearing, what procedures should the adjudicator follow?
answer
they are not req'd to inform the parties,
it is advisable that to inform the parties of his/her intention, give the parties an opportunity to prepare for it.
gives appearance of fairness/openness of the adjudicator
it is advisable that to inform the parties of his/her intention, give the parties an opportunity to prepare for it.
gives appearance of fairness/openness of the adjudicator
question
May adjudicators consult with others when making decisions?
what kinds of assistance may they seek and from whom, and what are the limits on the participation of others in the process?
what kinds of assistance may they seek and from whom, and what are the limits on the participation of others in the process?
answer
The person who hears the case is the only person who can decide it
can seek help from the tribunal council or tribunal chair for limited assistance in reaching decisions or drafting decision
ex:
suggestions or advice (what does this statute mean?)
obtain clerical assistance
CAN NOT be persuaded to make a decision
can't ask someone with a stake in the matter to persuade you
can seek help from the tribunal council or tribunal chair for limited assistance in reaching decisions or drafting decision
ex:
suggestions or advice (what does this statute mean?)
obtain clerical assistance
CAN NOT be persuaded to make a decision
can't ask someone with a stake in the matter to persuade you
question
In what circumstances are tribunals and other agencies required to give reasons for their decisions
answer
1999 SCC => in cases where the outcome will seriously affect the rights and privileges of an individual
(ex: for human rights decisions)
(ex: for human rights decisions)
question
what are the characteristics of a well-reasoned decision?
answer
- issues addressed
- summary of evidence (relied on and rejected)
- facts based on evidence considered relevant
- statement of law, policies and guidelines that determined decision
- summary of evidence (relied on and rejected)
- facts based on evidence considered relevant
- statement of law, policies and guidelines that determined decision
question
Do adjudicators have a duty to reach a decision within a reasonable time?
what can the parties do if there is excessive delay?
what can the parties do if there is excessive delay?
answer
yes
- inquire when a decision may be available
- if unreasonable, can apply to tribunal for an order but not recommended
- don't want to annoy the person that is making a decision for you
- inquire when a decision may be available
- if unreasonable, can apply to tribunal for an order but not recommended
- don't want to annoy the person that is making a decision for you
question
how should a tribunals decision be communicated to the parties?
answer
all parties should get decision at the same time
- parties should know the decision before any outside parties (excluding tribunal members and staff) to avoid bias
- parties should know the decision before any outside parties (excluding tribunal members and staff) to avoid bias
question
who is the audience for a tribunal decision?
answer
write to the parties that are affected by the decision
question
reasons an adjudicator should give clear and understandable reasons for the decision that has been reached?
answer
so there is no confusion or uncertainty about the ruling or the facts and analysis that the decision is based on.
question
Stay
answer
put a pause on the proceedings so you can appeal the decision.
Appeal - stay is automatic
JR - stay is not automatic
- have to ask for JR AND STAY
- otherwise other party can move to have you pay it.
don't want to comply with the order until it has been reviewed.
Appeal - stay is automatic
JR - stay is not automatic
- have to ask for JR AND STAY
- otherwise other party can move to have you pay it.
don't want to comply with the order until it has been reviewed.
question
is a stay automatic?
answer
no, unless tribunals rules state that it automatically does.
request for reconsideration must be accompanied by an application to stay decision.
in Ont. appeal of tribual automatically stays decision, judicial review does not automatically stay decision.
request for reconsideration must be accompanied by an application to stay decision.
in Ont. appeal of tribual automatically stays decision, judicial review does not automatically stay decision.
question
test to grant stay:
answer
1. there is a serious issue to be determined
2. party seeking stay will suffer irreparable harm if a stay is not granted
3. balance of convenience favours granting a stay
2. party seeking stay will suffer irreparable harm if a stay is not granted
3. balance of convenience favours granting a stay
question
balance of convenience
answer
if party seeking stay will suffer greater harm if refused than other party that benefits from order will suffer if the stay is granted = balance favours stay
court considers who will suffer more harm
court considers who will suffer more harm
question
Privative clause
answer
attempts to restrict or prevent review by a court of the actions or decisions of the agency.
lawmakers intention to tell us they don't want the tribunal decisions to be scrutinized
(does have effect on how closely a court will look at decision) => standard of review
lawmakers intention to tell us they don't want the tribunal decisions to be scrutinized
(does have effect on how closely a court will look at decision) => standard of review
question
what do you have to do before a judicial review? and, when do you have a right to a judicial review?
answer
looks at process
corrective measures to "fix" bad decision
granted in equity
must exhaust all appeal remedies first
1. Must use right of appeal before JR
2. Process
3. has there been a flaw in administrative law principles
4. born in equity, don't need law to tell you you can have JR
5. always have a right to JR
time limits vary from province to province.
corrective measures to "fix" bad decision
granted in equity
must exhaust all appeal remedies first
1. Must use right of appeal before JR
2. Process
3. has there been a flaw in administrative law principles
4. born in equity, don't need law to tell you you can have JR
5. always have a right to JR
time limits vary from province to province.
question
appeal
answer
looks at the decision
right granted by statute
an appellant body
if the statute says there is no appeal, then there is no appeal.
Statutory time limit
right granted by statute
an appellant body
if the statute says there is no appeal, then there is no appeal.
Statutory time limit
question
reconsideration (reopening, rehearing)
answer
- if process is unfair or one party is displeased
- sometimes statute says party can ask for reconsideration
- asking decision maker to reconsider their decision
- time limit usually specified in rules of procedure
- timing may also be subject to tribunals governing statute
- sometimes statute says party can ask for reconsideration
- asking decision maker to reconsider their decision
- time limit usually specified in rules of procedure
- timing may also be subject to tribunals governing statute
question
deference
answer
how much respect you give to a judicial body
question
HRTO reconsideration, appeals, JR
answer
reconsideration
Human rights code s 45.7(1) and (2)
- any party before tribunal can request reconsideration
Rule 26 (tribunal rules 2006)
- within 30 days
- form 20 delivered to all parties with:
a) reasons for request
b) evidence/argument
c) remedy or relief sought
No appeals
Judicial review
Human Rights code s 45.8 and s 21.2 SPPA and tribunal rules
- decision of tribunal final (Not subject to appeal)
- only subject to judicial review if decision is patently unreasonable
Human rights code s 45.7(1) and (2)
- any party before tribunal can request reconsideration
Rule 26 (tribunal rules 2006)
- within 30 days
- form 20 delivered to all parties with:
a) reasons for request
b) evidence/argument
c) remedy or relief sought
No appeals
Judicial review
Human Rights code s 45.8 and s 21.2 SPPA and tribunal rules
- decision of tribunal final (Not subject to appeal)
- only subject to judicial review if decision is patently unreasonable
question
WSIB reconsideration, appeals, JR
answer
- can reconsider at any time s 121 of workplace safety and insurance act
- Appeal s 121 os WSIA says yes to appeal
- there are terms to exhaust before going to the board for an appeal
judicial review
- yes s 123 WSIA but there is a privative clause
- Appeal s 121 os WSIA says yes to appeal
- there are terms to exhaust before going to the board for an appeal
judicial review
- yes s 123 WSIA but there is a privative clause
question
patently unreasonable
answer
decision is unreasonable, doesn't make sense
question
standard of review
answer
how closely does the court look at the review (up close or far away)
question
standard of review - 2003
answer
Standards of review:
Correctness (one right answer)
Reasonableness (several correct answers)
patent unreasonableness
Correctness (one right answer)
Reasonableness (several correct answers)
patent unreasonableness
question
standard of review 2008
answer
SCC eliminated standard of patent unreasonableness (post dunsmuir)
Reasonableness: still applies
Correctness: a court will not show any deference to the decision-makers process, will follow it's own analysis
Reasonableness: still applies
Correctness: a court will not show any deference to the decision-makers process, will follow it's own analysis
question
pre dunsmuir
answer
the court will not give it's view in tribunal proceedings unless the decision was patently unreasoable
question
post dunsmuir
answer
if a standard of review has not already been established, the court must carry out a standard of review analysis.
question
WSIB - appeal process
answer
- Investigation and first decision
- can request reconsideration
- Appeals branch - appeals resolution officer (ARO) will decide case
- appeal to Workplace Safety and Insurance Appeals Tribunal (WSIAT) where heard by a pannel (3 usually) of adjudicators
- can be reconsidered at WSIAT too
Then you can apply for JR
- can request reconsideration
- Appeals branch - appeals resolution officer (ARO) will decide case
- appeal to Workplace Safety and Insurance Appeals Tribunal (WSIAT) where heard by a pannel (3 usually) of adjudicators
- can be reconsidered at WSIAT too
Then you can apply for JR
question
Divisional Court
answer
- where you go for judicial review
- appellant court - hearing matters that have already been heard and challenged
- appellant court - hearing matters that have already been heard and challenged
question
Stating a case
answer
asking a court to clarify or resolve an important point of law that is being raised before the tribunal.
can ask opinion at any point during the proceeding,
has to be in governing statute
must be an essential question or courts won't like it
can ask opinion at any point during the proceeding,
has to be in governing statute
must be an essential question or courts won't like it
question
City of Toronto Act - Mayor Ford
answer
- municipality creature of statute
- TO city council can not remove powers that mayor was granted under city of TO Act
- City council took away things that were not under statute (ex: ability to change inner circle)
- delegated powers they could to deputy mayor (NOT under statute)
- only fed gov could change the Act to take away powers.
- TO city council can not remove powers that mayor was granted under city of TO Act
- City council took away things that were not under statute (ex: ability to change inner circle)
- delegated powers they could to deputy mayor (NOT under statute)
- only fed gov could change the Act to take away powers.
question
2 +1 levels of gov't
answer
Federal
Provincial
Municipal
Provincial
Municipal
question
M v H [1991] 2 SCR 3
answer
- gay couple
- wanted to separate, spousal support (FLA)
- challenged definition of "spouse"
- FLA said marriage btwn man and woman, so law didn't apply
- not compatible with charter and equality rights
- changed the definition of spouse in the FLA and DA to include same sex couples
- otherwise it would have had to be litigated (argued) every time someone wants to claim support for same sex couple.
- wanted to separate, spousal support (FLA)
- challenged definition of "spouse"
- FLA said marriage btwn man and woman, so law didn't apply
- not compatible with charter and equality rights
- changed the definition of spouse in the FLA and DA to include same sex couples
- otherwise it would have had to be litigated (argued) every time someone wants to claim support for same sex couple.
question
what is a reference case?
answer
An advisory opinion from the court on a major legal question submitted by the provincial or federal gov't.
Federal => SCC
Provincial => Divisional Court
akin to a stated case in admin law
- no obligation on gov't to follow opinion
- not binding opinion
- court has to give their opinion
- of the gov't doesn't follow the opinion of the court, public could question what kind of gov't the voted for and not vote for them again.
Federal => SCC
Provincial => Divisional Court
akin to a stated case in admin law
- no obligation on gov't to follow opinion
- not binding opinion
- court has to give their opinion
- of the gov't doesn't follow the opinion of the court, public could question what kind of gov't the voted for and not vote for them again.
question
Nadon reference case
answer
gov't asked court 2 questions
1. can a former member of the quebec bar for over 10 yrs be appointed to the SCC
2. Can a person be or have previously been a member of the Quebec bar for over 10 years be appointed to SCC
- Gelati objected to Nadon's nomination to SCC by PM harper
1. federal court challenge
certiorari
quo Interranto
2. stay of proceeding
3. Nadon not occupying office or attending court (until challenge was over)
4. recusal of SC justice rothstein (8 judges = equal #, and that was similar to how he was appointed)
5. constitutional amendment
(have to be from Que bar or court of Que - to change that would need Senate and HOC to all agree therefore not appointed)
appointment challenged at fed court
prceeding at fed court stayed so they could pose the ultimate question (reference case question) to the SCC
contract void ab initio because challenging the constitution.
1. can a former member of the quebec bar for over 10 yrs be appointed to the SCC
2. Can a person be or have previously been a member of the Quebec bar for over 10 years be appointed to SCC
- Gelati objected to Nadon's nomination to SCC by PM harper
1. federal court challenge
certiorari
quo Interranto
2. stay of proceeding
3. Nadon not occupying office or attending court (until challenge was over)
4. recusal of SC justice rothstein (8 judges = equal #, and that was similar to how he was appointed)
5. constitutional amendment
(have to be from Que bar or court of Que - to change that would need Senate and HOC to all agree therefore not appointed)
appointment challenged at fed court
prceeding at fed court stayed so they could pose the ultimate question (reference case question) to the SCC
contract void ab initio because challenging the constitution.
question
Standing plus test
answer
in order to appeal something you have to have standing
part of/or directly affected by something
Gelati had to have standing to object
- Public interest standing
- had to prove 3 things:
1. serious justiceable issue
2. genuine interest in the case
3. no other mechanism to enforce and validate the right (no other effective means to resolve the matter)
part of/or directly affected by something
Gelati had to have standing to object
- Public interest standing
- had to prove 3 things:
1. serious justiceable issue
2. genuine interest in the case
3. no other mechanism to enforce and validate the right (no other effective means to resolve the matter)
question
municipalities
answer
will always be about admin law because they are born from a statute
question
certiorari
answer
A request from the losing party in a case that the decision be reviewed by a higher court. Acceptance of the request and issuance of a writ of certiorari is discretionary with the higher court.
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