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Summary LSO Licensing Exam Hack - Self Study notes - Public Law - 18 pages

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LSO

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LSO

Welcome to the first of the two-part LSO Licensing Exam hack. The LSO Licensing Exam Hack (Barrister) series is a self-created, comprehensive, well-organised and neat summary and study notes containing all five subjects: - Professional Responsibility - Civil Litigation - Criminal Law -...

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Uploaded on September 25, 2022
Number of pages 18
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Type Summary

lso
law society of ontario
lso licensing exam
nca
lpp
ontario bar exam
canada bar exam
canadian bar exam
canada lawyer
ontario lawyer
ontario bar
canada bar
canadian bar
public law

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LSO - Barrister & Solicitor – Criminal Law LSO - Barrister & Solicitor – Professional Responsibility

Table of Contents 66. Public law: basic principles

66 Public law: basic principles 2 71 Interpreting the Charter 20  1. Introduction
67 Practice before administrative  2. AL
5 72 Proving a Charter claim 25
tribunals  The source of the power, not the nature of the body, determines whether the decision making is
subject to AL principles.
68 Judicial review of administrative action 6 73 Procedure in constitutional cases 28
 3. The original exercise of the delegated decision-making power
74 Aboriginal and treaty rights; Constitution  3.1 The source of delegated decision-making power
69 Freedom of information and privacy 13 33  The source of delegated decision-making power is the starting point for any AL analysis.
Act, 1982, Section 35
 3.2 The Constitution
70 The division of powers 16  The Constitution places 2 kinds of limits on delegated decision making.
 1) a delegated decision-making power and the way it is exercised must be in accordance w/
the CA Charter
Glossary  2) because of the division of powers b/w Parliament and the provincial legislatures, there
are certain powers that a province or federal gov cannot exercise; that is, the power belongs
The Law Society of Ontario / Law Society of the ♕: ♕ Canada / Canadian: CA
Ontario: LSO year: yr alternative dispute resolution: ADR exclusively to one jurisdiction or the other.
Chief Executive Officer: CEO Witnesses: Wes maximum: max  3.3 The CL
the Rules of Civil Procedure: RCP Witness: W minimum: min
Lawyer / Licensee: L
 The CL imposes limits on the exercise of a delegated decision-making power. Generally, the
Corporation: corp person: 人
Client: C the Judge: J' limits fall into three categories: procedural limits, jurisdictional limits, and errors of law.
Common law: CL
By-Law / By law: BL Plaintiff: P>  3.3.1 Procedural limits
the Federal Court: FC
Government: gov Claimant: C> the administrative decision maker: ADM  The rules of natural justice centre on 2 elements:
people: ppl Defendant: >D administrative law: AL
Organization: org' Ontario: ON Minister of: M of  a 人’s right to adequate notice of the case to be met and a right to a hearing
Information: info examination: exam' Beyond a reasonable doubt: BaRD
third party: 3P Respondent: >R United States: The U.S.
or other fair procedure w/ respect to the decision; and
business: biz ,000,000 m
between: b/w ,000: k
Dispute resolution: DR  a 人’s right to an unbiased decision maker.
Family Law Act: FLA
with: w/ days: d' Divorce Act: DA  In ON, these requirements have been codified in the Statutory Powers Procedure
without: w/o documentation / documentary / document: Department of Justice: DoJ
Criminal Code / "The Code": CC doc Act (SPPA). The SPPA applies only when the decision maker is required to hold a
Principle of Natural Justice: PNJ
the Ontario Court of Justice: OCJ Evidence Act: EA Charter of Rights and Freedoms: Charter hearing. When the SPPA does not apply, procedural rights are imposed by the CL.
the Superior Court of Justice: SCJ preliminary: prelim
the Supreme Court of Canada: SCC the Small Claims Court: SmallCC
common law: CL  3.3.2 Jurisdictional limits
Principles of natural justice : PNJ
the Attorney General: AG juridical review: JR CJA: CJA
 The decision maker must operate w/in the power that has been delegated.
judicial review: JR ON: Ontario balance of probabilities: BoP  3.3.3 Errors of law
Divisional Court: DC British Columbia: BC
the Court of Appeal: CoA United Nations: UN  The third limit (and perhaps the most difficult to define) is errors of law.
the Trial Judge: TJ Youth Criminal Justice Act  it is an error of law to base a decision on irrelevant factors; equally, it is an error of
law to fail to consider relevant factors
A step-by-step guide to hacking the licensing exams  4. Control of the original exercise of the delegated decision-making power
 4.1 Statutory reconsideration or appeal mechanisms
1. Read this thoroughly, understand this material fully
 Again, the starting point is the statutory scheme. In most situations, the statute will provide
2. Try practice questions (timed!) with the LSO materials, not this one.: I used this one:
for some sort of appeal, review, or reconsideration mechanism. There is no free-standing
https://accessbarprep.com/ pretty good but I'm sure others are fine too; make sure you try a full-length sample
right of appeal or reconsideration. One has to find a statutory provision permitting a
exam, at least one for each exam
challenge of the original decision
3. Go over wrong questions and understand them fully.
 4.2 JR
4. LSO website also have a couple of sample questions you should try: https://lso.ca/becoming-licensed/lawyer-
 JR refers to the courts’ ability to examine the exercise of a statutory power or the conduct
licensing-process/licensing-examinations/sample-examination-questions
of a decision maker independently of any statutory mechanism such as a right of appeal.
5. I didn't create my own TOC and solely relied on Law Society materials for the exam, they are detailed enough
 When the statutory mechanisms for challenging decisions have all been exhausted (or, in
for exam purposes. DO NOT bring this material to the exam site except for illustration purposes. You need
some cases, are not yet available), the next area for consideration is JR.
proper a DTOC!
 Courts will control decision making by way of JR when the decision maker has exceeded the
6. If you do all of the above, I am 100% sure you'll pass.
limits referred to above—limits set by the statutory scheme, limits imposed by the
Constitution, or limits imposed by CL.
 In both the provincial and the federal spheres, judicial intervention is discretionary. As CoA
for ON emphasized in Volochay v. College of Massage Therapists of ON, the court always
has the discretion to decline to set aside a tribunal’s decision

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,LSO - Barrister & Solicitor – Professional Responsibility LSO - Barrister & Solicitor – Professional Responsibility

 In ON, the procedure for JR is set out in the JRPA and R. 68 of RCP. Applications for JR are  Nature of the decision being made
brought in DC.  Nature of the statutory scheme and the terms of the statute pursuant to which the
 As of July 8, 2020, the JRPA requires an application for JR be commenced w/in 30 days of body operates
the date of the decision being reviewed, unless another Act provides otherwise.  Importance of the decision to the 人(s) affected
 5. Procedural entitlements
 Legitimate expectations of the 人 challenging the decision
 Public officials and agencies must follow proper procedure in exercising their delegated decision-
making power.  The choices of procedure made by the agency itself, particularly when the statute
 The first place to look is the applicable statutory scheme. The statute, regulations, by-laws, or rules of leaves to the decision maker the ability to choose its own procedures or when the
procedure may specify what notice is to be given and to whom and may set out other procedural agency has an expertise in determining what procedures are appropriate in the
components, such as the right to call Wes and to cross-examine. The statute may also indicate what circumstances
kind of evidence is admissible.  The influence of Charter principles on procedural protection
 In ON, the second source of procedural rights is the SPPA. When a statute is silent as to procedure,  6. Substantive review of the decision
and whether or not the SPPA applies, AL imposes certain requirements on decision makers to ensure  The first step on JR of the substance of an impugned decision made by a statutory decision maker is
that ppl subject to gov action receive a fair process. to determine the appropriate standard of review for the issue under review.
 5.1 Natural justice  Since SCC’s 2008 decision in Dunsmuir v. New Brunswick, there have only been 2 standards of
 5.1.1 When are the principles applicable? review: correctness and reasonableness. Vavilov establishes a presumption of reasonableness for all
 PNJ apply to statutory decision makers that are classified as “judicial” or “quasi- matters under review.
judicial,” as opposed to those that exercise “administrative” or “executive” powers.  The presumption can be rebutted in favour of a correctness standard in 2 situations: (i) where it is
 5.1.2 Content clear that the legislature intended a different standard, and (ii) for certain categories of legal
 (a) The right to be heard questions, where the rule of law requires a standard of correctness.
 (b) An impartial decision maker  A legislature intends a different standard than reasonableness to apply if the legislation (a)
prescribes a different standard, or (b) provides for a right of appeal to a court (which signals that the
 (i) Apprehension of 人 al bias
legislature intends a correctness standard to apply)
 (ii) Institutional bias
 (iii) The source for the claim of an apprehension of bias
 If an adjudicator thinks that 人 al circumstances might give rise to
an apprehension of bias, the prudent course is for the adjudicator
to disclose the facts to the parties, since the parties might not be
aware of the circumstances. That disclosure may form the
evidentiary basis of the claim of a reasonable apprehension of
bias.
 Alternatively, there may be comments made by the decision
maker outside of the particular proceeding or hearing.
 The test for apprehension of bias is whether the official is still
capable of being persuaded or had expressed a final opinion that
could not be changed.
 Actual bias or reasonable apprehension of bias on the part of the
decision maker renders the decision void.
 5.2 Fairness
 However, state decision making and regulation has increased greatly, and there are a
number of decisions of public officials and regulators that cannot be characterized as
“judicial” or “quasi-judicial.”
 Through the doctrine of fairness, courts can assess the procedural adequacy of decisions
made by public officials even though the decisions are not made in accordance w/ the PNJ.
 The doctrine of fairness aims to ensure that a 人 has the opportunity to advise the decision
maker before the decision is made of any relevant fact or argument that should be known
for the decision maker to reach a rational conclusion. The pre-decision right to fairness
comprises 2 elements:
 the right to know the case to meet; and
 the right to make submissions to the decision maker.
 (a) Factors affecting the content of the duty of fairness

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, LSO - Barrister & Solicitor – Professional Responsibility LSO - Barrister & Solicitor – Professional Responsibility

67 Practice before administrative tribunals 68 JR of administrative action
 1. Introduction
 2. Material to examine before the hearing starts  1.What is a JR?
 2.1 Legislation  On application from a party, the court may review an administrative decision and, at its discretion, intervene
 The L should read the statute that creates the tribunal and the statute that empowers it to act or where it finds that the decision was based on a reviewable error (including an error of law or fact) or breaches
decide in the instant case. Often this will be one statute principles of procedural fairness. The party challenging the administrative decision has the burden of showing
 2.2 Regulations that the decision or decision-making process did not meet the requisite standard.
 2.3 Rules: review the rules to understand not just the tribunal’s procedures, but also tribunal’s powers  A JR is distinct from an appeal in several respects:
 2.4 Policy and practice directions  1) a right of appeal is a statutory right and must flow from some legislative instrument while JR is
 2.5 Tribunal decisions generally available in a public law context; the right to a JR need not be set out in a statute. A JR is a
 Application of the SPPA discretionary remedy (i.e., the court is never required to intercede), and courts may refuse to review
 To determine whether the SPPA applies to the tribunal’s proceeding, one should administrative action where a right of appeal exists and has not been exhausted.
 examine whether the tribunal is expressly excluded from the SPPA by the statute creating the  2) on appeal, the level of deference accorded to the lower court depends primarily on the nature of
tribunal or by s. 3(2) of the SPPA, which excludes certain tribunals; and the issue under review. On JR, there is a presumption that the administrative decision will be
reviewed on a standard of reasonableness. This deferential standard can, however, be rebutted in
 examine s. 3(1) of the SPPA to see whether the tribunal is required by statute or “otherwise by law”
to afford the parties a hearing before making a decision. limited circumstances, e.g., through legislative intent or where the rule of law requires less
deference.
 If the statute provides for a hearing, then the criterion is met. If the statute is silent, then one has to
turn to the PNJ and fairness to see whether the CL requires that a hearing be held.
 3) the courts typically have very broad remedial jurisdiction on appeal. They can substitute their own
decision for that of the tribunal or court appealed from and can generally order a broad range of
 Note also that the tribunal must be exercising a “statutory power of decision.” It may not be enough
remedies. In a JR, the courts’ remedial jurisdiction is limited to the powers set out in the applicable
that the decision maker is authorized by statute to make decisions. Rather, the decision maker must
statutes (i.e., FCs Act (FCA) and the JR Procedure Act (JRPA)).
be authorized by statute to make the decision in question.
 2. Jurisdiction of the courts to review administrative action
 3.1 Operation of the SPPA
 There are 2 main venues in which a JR can be pursued: federally, before FCs (comprising FC and the Federal
 If the tribunal has made rules, as provided by s. 25.1, the tribunal hearing may be oral, written, or
CoA), and provincially, before DC (a branch of SCJ) (Courts of Justice Act (CJA), s. 18)
electronic. S. 5.1 provides for written hearings, as long as the tribunal’s rules provide for this
procedure and unless a party convinces the tribunal that there is a good reason not to have a written  JR of administrative decisions of ON bodies or tribunals is governed by the JRPA and RCP (Rules). The review
hearing on the substantive matters in issue. of federal administrative action falls under the FCA and FCs Rules (FCR).
 3.2 Parties’ rights  Appropriate venue for a JR depends on the nature of the decision under review. FCs may review any
authority exercising powers conferred by a federal statute or order (FCA, s. 2(1)). Thus, FCs have exclusive
 a party is entitled, before a hearing, to reasonable info of any allegation concerning the party’s
jurisdiction to review decisions, orders, and other administrative actions of all federal boards, commissions, or
character, propriety of conduct, or competence that will be at issue in the hearing.
other tribunals (ss. 18.1 and 28). FCs cannot, however, review the actions of a body created by a provincial
 s8 states that a party is entitled, before a hearing, to reasonable info of any allegation concerning the
statute.
party’s character, propriety of conduct, or competence that will be at issue in the hearing.
 ON’s DC has jurisdiction to review decisions of bodies exercising statutory powers of decision conferred upon
 s 10 provides that a party may be represented by a “representative,”
them by an ON statute. DC cannot, however, review the acts of federal bodies
 participatory rights of parties: call and examine Wes and present evidence and submissions, conduct
 Conversely, ON’s SCJ is a court of inherent jurisdiction, distinct from DC. SCJ’s powers are inherent; they are
cross-exam' of Wes
set out in but do not flow from the CJA (CJA, s. 11(1)). SCJ has all the jurisdiction, power, and authority
 3.3 Wes
historically exercised by courts of CL and equity in England and ON (s. 11(2)).
 s12 allows a tribunal to issue a summons to compel a W to attend at a hearing and produce docs.
 2 instances in which SCJ can review the acts of federal bodies (i.e., can encroach on FCs’ jurisdiction).
 3.4 Evidence — admissibility
 1) SCJ has inherent jurisdiction to make declarations regarding the constitutionality of legislation or
 In general, rules of evidence before administrative tribunal are less strict than in a court proceeding.
its application as well as matters relating to Part I of the Constitution Act, 1982, being the CA
This is reflected in the SPPA, which has a relaxed threshold for the admission of evidence.
Charter (Charter).
 4. Motions
 2) while FCs have jurisdiction to issue most of the traditional prerogative writs (certiorari,
 Tribunals have the ability to make interim orders or decisions. prohibition, mandamus, quo warranto, and habeas corpus) as well as the equitable remedies
 5. ADR (injunctions and declarations) (FCA, s. 18(1)), its power to issue habeas corpus is limited by the FCA
 SPPA permits tribunals to direct the parties to participate in ADR if the tribunal has made rules under s. 25.1 to cases involving members of the CA Forces serving outside of CA (s. 18(2)). (Prerogative writs are
respecting ADR and the parties consent.
described in more detail below.) Writs of habeas corpus against any other class of 人 s fall w/in the
 6. Decisions
jurisdiction of the provincial superior courts.
 Under s. 18 of the SPPA, a tribunal is required to deliver its decision, including reasons if any, to the parties or
their representatives.  In addition, provincial superior courts may quash or set aside a decision of a federal board (i.e., issue
certiorari in aid of habeas corpus).
 If a tribunal’s decision is being challenged, the L should refer to s. 25 of the SPPA and the tribunal’s enabling
statute. A challenge by way of appeal will operate as a stay of the tribunal’s order (subject to limited  3. General principles
exceptions), whereas a challenge by way of JR will not.  3.1 The availability of a JR
 7. Impact of COVID-19 pandemic on tribunal proceedings  Only public action or decision making

5 6

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