Administrative Law Introductory Class - 2021

[Music] hi everyone we are delighted and excited to have you here and be a part of your journey to exam success i am ngozi emmanuel and i oversee all administrative aspects of the ncaa guidance before we dive into the review proper permit me to give a broad overview of who we are and what we do the ncaa guides is a registered partnership of five seasoned and experienced teachers who we also refer to as guides we employ a guide approach because we believe that every candidate has what it takes to successfully challenge the nc examinations and our part is to guide the candidate to success we understand the difficulty that nc examinations present and we help candidates overcome the obstacles and difficulties in understanding the cost materials and examination formats we do these true intensive classes revisions and examination review workshops we do not believe in a one-size-fits-all approach and our study sessions are focused on helping candidates understand the course material in a way unique and personal to them in addition we also offer private and intensive tutoring sessions for candidates who are in need of a direct one-on-one session if you are interested in registering for our private tutoring session please reach out to us via email at inquiries ncaa guides dot com once again i would like to say thank you on behalf of the ncaa guides team for joining us today great yeah so i'll be facilitating this class the canadian administrative law class introductory class for the ncaa guys and um before we start i will urge us to get a copy of the nca syllabus beside you because we're going to be going through that shortly and i'll also be making some references to what's in the syllabus so to start with what and again i want to urge everyone to please switch on your videos i prefer to have an interactive session and it's easier when i can see your faces i know we all have privacy concerns and most of us want to be on our beds or on the couch or something but nevertheless i prefer to see your faces because that way i know if you understand what i'm telling you or if you don't understand and i'm aware that some of us may already um this you know you probably made some progress in your studies for admin law while some of you are just starting for the very first time so wherever you fall into this class is for you so the aim of these introductory lectures is to introduce admin log to you so if you have not been studying this class is to get you to start studying and by the way i'm very sorry my camera is here and i can see you guys on this screen so that's why it feels like i'm facing the right side yeah so uh the idea of this class is to introduce you to the concepts in canadian administrative law demystify it for you and to kind of prepare you to start your studies if you haven't started and we have started to you know clarify some preliminary concerns because unfortunately we can't cover the entire admin law while we can cover the syllabus but we can't cover it in depth in just this class so if you've already been reading this and this is a very good opportunity for you to ask any questions and if you haven't been studying yet it's also a good opportunity for you to start your studies so what is administrative law i'm going to offer you some definitions and then i'm also going to you know look at the syllabus which the ncaa has provided for us because the number one material you need to pass this exam is your canadian administrative law syllabus you can you can almost you can almost not you know succeed in this exam if you have never seen the syllabus and one thing i have also realized is that there are some candidates that they have all sort of materials notes i mean if you ask them they have notes by five or six different suitors but they don't have a copy of the canadian administrative law syllabus you are not setting yourself up for success that way maybe you can miraculously pass the exam but i can tell you that the number one document that you have beside you whenever you're studying is the syllabus so now beram's canadian law dictionary defines admin law this way it says administrative law include includes those rules of law that concerns the exercise of the powers and privileges of the executive branch of government it is mostly concerned with the actions and decisions persons to the powers given to the executive by the parliament and or provincial legislature we are going to unpack that now let us look at you know another dimension administrative law is particularly concerned about the rules that exist to control administrative tribunals bodies and commissions and administrative actions in its broader sense now there is a shorter version of that definition which i think it's a little bit more sustained and clearer and it says admin law deals with the legal limitations on the actions of government officials and the remedies which are available to anyone affected by a transgression of these limits now let's look at the canadian law uh canadian administrative law syllabus and see how the ncaa defines admin law uh let me try and share my screen okay so um i believe you guys can see my screen right now so now according to the nca administrative law is the body of law regulating the way in which government operates it's about the rules and limits that apply to not only the operations of the crown cabinets ministers governments departments and municipal corporations but also the various administrative tribunals and agencies deployed by governments for the carrying out of governmental functions of all kinds it is concerned with the procedures by which all these various instruments of government operates this substantive scope of your mandates and the remedial structures that exist to ensure that decision makers of various kinds act in accordance with the rule of law i'm going to leave you guys to read the rest in your personal study times but the most important part that i want to bring out right now are what administrative law isn't so now administrative law is not about the policing of the divide between federal and provincial jurisdiction enshrined in the constitution and other statues that constitute the canadian constitution and it also doesn't concern itself in detail with the constitutional incidence of the crime parliament and other various legislative assemblies rather what is admin law it concerns the circumstances under which the government decision makers are subject to an obligation of procedural fairness again it also concerns itself with the extent to which substantive decisions of admin decision makers are subject to merit scrutiny by the courts and the third thing is the remedial framework so basically they are saying the same thing so now let me offer you my definition of admin law which i think is very simple i just think in an informal term admiral is just the policing of the executive by the judiciary now i want you to see this as three brothers that are interacting so there are three brothers the parliament which happens to be the law-making body the executive arm of government which includes um cabinet ministers and the likes and all that and then we have the what's the judiciary the courts so see them as three brothers and the way i like to see this um admin law interaction is such that the parliament is the one authorizing the executive to carry out certain actions and the judiciary is trying to ensure that the executives stay within the limits of their powers so essentially it is the judiciary policing the executive from not going beyond what the parliament has designed for them to do so now let's look at a very good example and i'd like to give this example a lot now let's assume there's a parking authority in ontario called the ontario parking authority now the ontario parking authority was established by a law called the ontario parking act so this law was obviously must have been made by the provincial uh provincial legislature of ontario so that's the ontario uh provincial legislature so now that law that was made by the ontario provincial lawmakers gave the ontario parking authority the rights the power and the privileges to make certain decisions that concerns citizens of canada or let me say generally people living in canada now in doing that the judiciary wants to make sure that in carrying out those powers the powers that has been you know assigned to them by the lawmakers that they don't jeopardize the interest of the citizens and that is where the judiciary comes into play so we're going to be seeing this is a broader conversation i'm just trying to break this down in layman's terms there are several considerations to you know to look at however so just see it as three entities trying to interact with each other the lawmakers giving the power to the executive and the judiciary trying to police the executive to make sure they stay within the bounds of the powers that has been assigned to them and uh we're going to be looking at um i just want to do a brief rundown of what's in the syllabus so chapter one of the syllabus deals with setting the stage so essentially here is to explain the concept of admin law to know the admin agencies that you know the agencies that i you know the institutions of the admin law states and you know chapter two talks about the sources of procedural obligations i'm gonna be talking about that briefly uh chapter three talks about the procedural obligation triggers i will give you guys a broad structure of what admin law is so when we are done today you will have a big picture of what admin law is in technical terms so now we have been discussing what admin law is in layman's terms so by the time we are done with our discussion today you have a you know a big a big picture idea of what admin law is in technical terms you see the moving parts you see the procedural aspects you see the substantive aspects you see the moving part under the procedural aspects the substantive parts the changes that vavilov brought about the wrinkle that dory continues to you know ensure in the framework and of course several other things so now chapter 3 of the syllabus deals with procedural obligation triggers chapter 4 talks about procedural obligation triggers again but this time around the exceptions to those triggers legislative decisions and emergencies then chapter 5 talks about the charter and the bill of rights and chapter 6 talks about the constitutional duty to consult and accommodate indigenous peoples so for uh foundations of canadian law candidates or people that have a candidate that have already written the exams for foundations you would have a good understanding of these books if this is your first time hearing about the concept of duty to consult i'm also going to try and do a brief introduction in the in the course of our discussion today chapter seven talks about the content of procedural obligations now this is the content is divided basically into two i'm going to explain that too right to be heard and then chattery talks about the second division which is the what the rights to an unbehearsed and independent decision maker chapter 9 talks about the issues arising from institutional decision making and the last chapter is sorry chapter 10 sorry gives us introduces us to the standard of review analysis chapter 7 tells us about vavilov which i'm assuming you've already urged about by now diligent admin law students and then the last chapter talks about the venue and basic procedure for judicial review so let us start from the beginning now what's to whom does administrative law apply we've already answered that question the executive branch what does this concern it concerns the exercise of power where does this power come from again i've already answered it it comes from either the parliament or the provincial lawmakers now there's a need to distinguish between these two because it will be very important as you will see when we proceed in our discussion it should be important for you to know who is the one uh what authority made the law is it a provincial parliament or is it the parliament of canada because that would determine certain things for example in your sources of procedural fairness obligations and the uh applicable sources that were applied to that kind of to the applicants so we're gonna get that let's not get ahead of ourselves so what does admin law do again we've answered that question it governs and controls these bodies now if you um a few words let me say a few times of terminology that i'll be using in the course of our discussion i would like to introduce you to applicants an applicant is the individual that is alleging that their rights has been affected by an administrative law body so whenever you hear me say applicants i am referring to that individual that is claiming that an admin body has you know infringed on their rights whatever that kind of right is it's another you know discussion entirely now the administrative law body i will often refer that refer to that as adm so admin decision maker so whenever you hear me say adm i mean the administrative law decision maker and um i think that's what i can remember for now so if i remember any other acronym i'm going to explain what it means so from the beginning let me share my screen so let us look at the institutions of the admin states so here we've got i already mentioned the parliaments i already mentioned the judiciary the executive and there are also some agencies that don't exactly look like they are governments but they have some measure of governmental control and that is what determines whether they are also going to be part of you know the institutions of the admin states for constitutional law candidates that have seen the case of eldridge you see how the court came to the conclusion that even though the hospital is technically not a government institution but they were carrying out a certain governmental function which makes the canadian charter of rights applicable to them so that kind of principle too is applicable in admin law for example i'll give you guys a very good example of that the lost societies are technically not governmental agencies they are not government agencies at all however they carry out a governmental function that we refer to as the power of compulsion so that power essentially means that the right to tell someone to do something and if they don't do it you sanction them for doing it that kind of power is the exclusive preserve of a government and the fact that they exercise that power is because the government allows them to do so so in doing that they also have to be bound by the constraints that would have ordinarily been applicable to a government agency so we're going to be seeing these dimensions as we proceed in our conversation so i don't want to give you guys a water tight definition and say admin law only applies to the government because you start seeing some institutions that looks like it should not apply to them but again we're going to get there so um essentially admin law is divided into two some like to say divided into three and i'll explain now so basically we can say the procedural fairness aspect and the substantive analysis or the substantive review then the third category that most people that i've heard have categorized is the remedies aspect i don't think is a major category anyways but it's very important so let's say procedural aspect and the substantive review analysis so what does procedural fairness entail procedural fairness is essentially telling us about uh formula you have a question i can see your hands your hand icon wrist you have a question when you started i wanted to ask because i'm new i'm trying to get my feet into everything i want you to ask where can i get a syllabus that was my question nca.legal nca.legal thank you very much and just go to the tab you see exams and outlines click on it then scroll down you see the um canadian administrative law on the list of courses so one is the syllabus one is the sample exam so click on the name canadian administrative law and that should generate the syllabus onto your onto your pc thank you very much you're welcome so procedural fairness what does procedural fairness remember remember that i said we can basically divide that main law into two procedural fairness aspect and the substantive review analysis so what does procedural fairness really entail procedural fairness talks about the procedures that the admin the adm the admin decision maker followed in arriving at their decision that is just what procedural finance is about the procedures and what are we looking to query at that stage we are trying to find out if those procedures were fair so the applicant remember with the applicant is the individual alleging that the rights were infringed by the adm which happens to be the administrative decision maker so the question at that stage is was the procedure fair to that applicant or not there's a whole lot of answers to that and there's a whole lot of unpacking for us to do now the substantive aspect doesn't concern itself at any stage with procedures but the substantive aspect concerns itself with the substance of his of the decision itself that is was the decision itself a good decision now in analyzing whether position was a good one that is what is going to lead us to this standard of review and i'm going to give you guys a little bit of the historical backdrop to the standard of review analysis where we used to be where we are now another love has taken over the former position so now let's come back to procedural finance analysis i'm just trying to see if i can open up some things here so that you can see i'll just share my screen and by the way uh i have a framework which i'll be using a lot in the course of our discussion here in the event that i always recommend it for candidates especially if you're writing admin law anytime soon the framework um the framework basically um helps you in the exam it's very useless for you right now it's not a notebook it's not a notebook you cannot read it for admin law it's a 26 pages framework and essentially what the framework is about is after candidates have finished studying they still don't have an idea of how to you know to understand the big picture and how to distract them to the exam essentially and also i also realized because i was also a candidate that wrote admin lots and i used this framework i was the first candidate to use the framework and i realized that when you're in the exam there's a tendency for you to experience some kind of brain block not that you don't know it you just don't know how to put it down and unfortunately your notebook isn't going to be so helpful because it's going to be too you know a lot of information so that was what led to the creation of this framework it's it helps you i'm just going to show you guys some things i mean i'm going to be teaching from this the structures um procedural frameless review essentially it's more like a blob a blob that has been vetted that more like includes all the information you need it's just for you to be slotting some you know fat specific you know situations based on your exams again very useless for you right now until you finish your studies you probably wouldn't understand anything it's referring to but i'll be teaching from it today in case anyone is interested you can go to our website it's available on our website yeah so now this is the structure for procedural fairness the best way we can understand procedural fairness itself so now in doing a procedural finance analysis that is in understanding whether a procedure was fair to an applicant there are several things we need to look at and we need to start with the sources of those procedural fairness obligations we also need to look at the triggers then we look at the threshold i'm going to explain every single one of that shortly and then we look at what we refer to as the contents or the participatory ranks now when it comes to sources the number one source that you always have to refer to first is the enabling statute of the administrative decision maker that is your number one source you always have to start from the statutes because that's starting to remember was or let me say is what gave that decision maker the power to carry out that function in the first place remember the three brothers the parliament the lawmaker the executive acting on behalf of what the parliament has delegated to them and the judiciary trying to police the executive so a law gave the executive um which is the administrative body that power so you have to start from that law that is your foundation for procedural fairness review now when you start with the law what are you looking for you are essentially looking for any provision that points towards procedural famous obligations and what are procedural finance obligations let me give us an example of let me let me just stop sharing my screen so that i can you can focus on me for a while so let me give an example of the courts so when i mean we're all lawyers from different jurisdictions so it should be very easy for us to understand when you start a mata in court the first thing you do is to you know file the papers to bring them action before the court and when you do that the cost sheriff or baby for whatever they call it in your jurisdiction notifies the other party except if it's an ex-pate application that means only you're the only one that's going to be hurt so you'll notify the other party and if they are unable to find that party what did they do they come back for an order of substituted service right just so they can notify the other party and then one of the practices i remember in my you know my own jurisdiction is you know the sheriff goes to your workplace or they go to somewhere they know you frequent and they paste it there and they take a photo sometimes they take it beside the daily newspaper to show the dates it was not altered and they present the evidence before the court all to prove that you were notified so the number one thing the number one so the court is just trying to ensure that the procedure in because it your court is going to reach a decision eventually so they're trying to ensure that the procedure that is going to take them to get to that decision is fair and the first step in making sure that procedure is fair is to do what is to notify a party that a case concerns them before a court so now if the party has been notified what's the next thing you have to disclose disclosure you have to disclose the fruits of the case you have to in the u.s and in canada they do video discovery and they like some other resistance don't do that it's just paper discovery so it's in my own format jurisdiction they call it front loading you front load all the documents in advance because you want them to understand the fruits of the case also you also want to make sure that there is no sort of delay i'm already listing procedural finance obligations so if the court is going to follow all these procedural obligations remember they are policing the executive they expect this executive arm of government that that are acting as adms to also follow these guidelines however as we're going to see when we are studying the the the cuts don't require the same level of strictness that would be that that will be applied to a normal chord setting to an adm so for example in criminal disclosure they may not necessarily need you to do witness statements on oats or something that is so so in-depth like they were doing in court but at least there are laws and there are rules and there are cases and judicial precedents guiding how these things are to be done which is what is going we're going to be discussing today so sources you start from the statues and you are trying to see any sort of procedural finance obligation in the states and if you cannot find any or you the ones you found were insufficient now can you i want us to put a pin in that for now so there's a very important thing that i may not remember to mention especially if any one of you you know ends up not attending my intensive classes and by the way we are going to have um based on the new um the revised schedule of the ncaas our admin intensive classes will not be starting this this year it should be starting towards the end of january you can check the schedule on our website so if anyone is interested in registering for our intensive classes we have an early bird discount of i think 20 on right now which is gonna end i'm not sure i think it's going to end this week i'm not sure i would advise you to if you are you know you're going to register eventually it makes sense for you to take 20 off except you are not planning to register so in case i in case any one of you doesn't end up in my intensive classes i just want to mention this now and it may not make a lot it may not make a lot of sense to you because there's a whole lot of things that we need to cover before i'm supposed to say this but when you are doing your exams you need to get um you need to have like as you're looking at the questions you need to start jotting down the possible procedural fairness obligations that are involved in this scenario because you are not expected to discuss all possible procedural finance obligations that exist in admin law you're only expected to discuss the ones that are included in your scenarios so as you're doing your first reading the issues should start jumping at you and by the time you are done with your studies or if you attend the intensive classes by the time we are done with the classes you will know how to spot these issues we are going to look at them in depth the cases the different authorities for example we are going to look at commercially sensitive information how the court has you know decided how you should treat the commercially sensitive information in two different cases two contrasting cases there was a very interesting case that we treated in our last classes and some of the candidates told me you know it was one of the things that you know came out in their exams and we just had to look at the different dimensions of those procedural affairs obligations but the moment you are looking at your question you start jotting them down on one paper or if you have a very good photographic memory you can memorize them so the idea behind it is you should know the procedural finance obligations that are due to your applicants after doing after doing a first or second reading of your question because it's gonna help you to know and understand what sources you want to look at so now what we have on the screen right now i'm going to share my screen again remember i said you're starting from the starting so if you start from the statutes you're essentially looking for the procedural finance obligations that the statute has provided for but if you don't know what you are looking for then how do you know if the statute is going to be sufficient because if the statute is not sufficient then you now move on to what we refer to as the common law but if the statute is sufficient you don't need to move on well you can still write it in principle and tell the examiner that this is what i would have done if the statutes were not sufficient i mean just to get the maximum max obtainable but technically the common law is going to be useless if the statute has provided for all the procedural finance obligations that are due to your applicants when the statute is not sufficient then you move to the common law so looking at the commander what are we looking at you're trying to see whether there exists a general duty of fairness and the judicial authority that governs this is the case of night versus indian aid you are going to see that case a lot as you proceed in your studies so the case of night gave us three factors or three principles to determine if there exists a duty of a general duty of fairness and the first principle says um let me see if i have it yes so i can the nature of the decision i'll just like to show you guys if it's here uh it's probably not in these jets here maybe it's in the framework okay so let me check let me just open another framework for you okay someone is trying to join us okay so the first one talks about the nature of the decision and the second one talks about the relationship existing between the admin body and the individual why the government talks about the effects of the decision effect of the decision on the individual's rights interest and privileges now the three factors in night are the ones that will help you determine if a general duty exists and then the common law is triggered so now i will be discussing the sources and the triggers side by side because you can't discuss them separately so what is the trigger for this tattoo the trigger for the status is in the statute itself so you don't need to look too hard for that you easily know that and these triggers can include maybe an enabling provision that talks about procedural fairness or maybe an enabling provision that you know introduces the relationship between the applicant and the adm for example the human rights tribunal if a provision in human rights tribunal heart says an individual that the immigrants you know right has been trampled upon or infringed can bring a mata before the human right tribunal that is the potential trigger for the statutes but the common law it gets tricky so now the triggers for common law includes the night three prong test which was laid down by the court in the case of knight versus indian aid and also a concept that we refer to as legitimate expectation so now the ninth case gave us three factors the nature of the decision the relationship between the adm and the applicants and then the effect of the decision now under the nature of the decision now the first thing i should first of all let you guys understand is these three factors are what i refer to as mutually mutually inclusive factors and what do i mean by that i simply mean you need all three factors to point towards the existence of the general duty of fairness otherwise the common law is not triggered now the nature of the decision factor what are we looking at here we're essentially trying to see whether the decision is either a legislative decision or an administrative decision also we're also trying to see whether it's a final decision or a preliminary decision these are huge concepts and i may not even be able to finish everything but i'll try and explain it so now you have to understand the difference between a legislative decision and an and an administrative decision so what are the differences let me just show you on your screen right now so in a typical legislative exercise of power and what do we mean by legislative decision on administration remember that the power of the adm flows from the lawmaker and there are instances where the lawmaker will delegate some other law making power to that adm not just an admin power maybe a power to make further regulations or a power to make rules and policies so in instances like that then you need to understand that it may not be amenable to procedural fairness obligations so now let us try and distinguish between a legislative power and an administrative power now in a legislative flow in a legislative flow we see the lawmaker making a law and that law establishes an admin body to determine we call it the rip the rights interests and privileges of individuals so in that instance what are they doing if an admin law agency follows this kind of pattern they are exercising an administrative law power they're exercising an administrative law power because here the lawmaker made the law that established them to determine the right interests and privileges of individuals but on the other hand if the lawmaker makes a law to establish the adm and that law empowers the adm to make a further law or a further regulation then that is a legislative power not an administrative law power because they are not exactly determining the rights interest or privileges of an individual but there's a twist to that and if you read your syllabus if you read the syllabus on the chapter on legislative decisions and emergencies you will understand that and we're going to try and elaborate on that more in the intensive classes but let me try and give you a succinct definition of that now in an admin power flow the adm is applying a law which is of what's of specific application that is there is a target audience there's a target individual there's a target organization there's a target category of presence but in a legislative flow they are making a law regulation that is sufficiently general in application and not particularly focused on a reasonably narrow subset of persons again if you have not studied at milo before i'm sure that is probably going to be like something like great to you but anyone that has studied you'll probably be excited right now the way i am so i will add you guys you know this recording will be available on youtube you can always listen to it again if you feel like you need more help you can always join our intensive classes if you feel like you need one or one help we also offer private storing sessions and we urge you guys to try and join our facebook group or whatsapp group either of them because we'll be making the links to the youtube pages uh to the youtube videos available on those groups it's very possible that our emails may end up in your spam so your sure way of getting these videos would be to join either the facebook group or the whatsapp group it should be your confirmation email when you registered okay so back to uh back to our discussion so uh now remember we are still on the sources so now the trigger for this static that like like i mentioned earlier is the statutes the trigger for common law knight three prong test and legitimate expectations so now we are evaluating my three-pronged test right now and i already told you guys that the knights test is a mutually inclusive test so the three factors on that night must be present for night factors to trigger the application of common law and in looking at the knife factors i mentioned that there are three of them the nature of the decision the relationship between the idiom and the individual and the effect of the decision on that individual now we're looking at the nature of the decision and i said in understanding the nature of the decision concept you need to either look at whether it's a legislative or admin decision or whether it's a final or preliminary decision now that you know how to spot a legislative as against an admin decision if the decision is pointing towards the legislative decision then it does not attract the duty of fairness but if it is pointing towards an administrative decision then it up you know it's attracts the duty of fairness so that's just 50 percent of 0.1 the remaining 15 of 0.2 is is it a final or preliminary decision you will know that easily from your question but it can get tricky to sometimes because and that leads us to the concept of investigations and recommendations for anyone that has attempted to study or to try and again if you've read if you have not already probably won't attempt to solve any past questions for anyone that has attempted to solve a past question on the ncaa website the past question there right now which i have here um again this is not an exam review class so we'll be solving this question but i just want to make a reference to it now in this question and i've noticed that trend so one thing we don't do at nca guys is we don't tell you what the ncaa is going to bring out but we can always tell you trends and i've noticed the trend for admin law that the nca number one they like bringing out cases that are asked to do its prisons human rights and they also like including investigations and recommendations in their questions because they know that candidates don't have a solid understanding of how it works and unfortunately except you are you know extremely bright and you also interact with people a lot it may be very difficult for you to quickly ascertain it from the textbooks so now that was the concept of investigation and recommendation work now they slaughtered that into this question too and you can see in this question that when these applicants here mr harness when he bought when he brought his complaints to the canadian human rights commission what did the commission do upon received of the complaints they appointed an investigator so now how does the decision of the investigator interact within the admin of framework because when the investigator investigates and makes a decision that's one decision now when the board makes their own decision too is that a separate decision if they adopt the decision of the investigator what is the impact because the general rule is that investigations fall under preliminary decisions but that general rule has exceptions there are exceptions where an investigation will not be deemed to be a final decision so which if you don't pay attention it will affect your analysis of that point one under the ninth factors the nature of the decision so now a very good example of when investigations and again we're going to look at different dimensions but we can't look at them today unfortunately because our time is fast paced but a very good example that you can take from this class or when an investigation and recommendation can become a final decision is when the investigators report is adopted by the board or by the tribunal by the adm without doing any other thing they just adopt it and they say this is the decision there are some instances also where the adm can decide to adopt that decision and then i'll provide reasons for adopting it it's still more or less like they adopted that decision but the cardinal principle or the cardinal rule is that the proximity of the investigative reports to the final decision of the adm is what determines that investigation is going to be a final decision or preliminary decision for the purposes of evaluating that first factor under the knight's test i don't know am i making sense or am i standing too high level for you guys i i mean i should have asked i should have asked you guys can we put on our cameras i want to interact with us where are we with our studies because i need to understand my audience before i divulge too much naomi naomi can you um i would say i've gone far like i've kind of covered the whole syllabus but i'm really confused so i yeah i i need a lot of help so i'm just pretending like i haven't heard anything about admiral so i can suck up all the knowledge that you can give today okay um estella i hope i pronounced it right hi um actually i'm from a civil law jurisdiction but i'm surprised that many things you said are really similar in i well are really similar to my country um i understand that sometimes investigator or well let's say some body inside the entity will have an opinion but not necessarily that opinion is going to be uh taken into consideration by the uh ruler that's or perhaps i don't know how to say the the final decision i i understand that's the same case here okay so how far you we offer you in your studies have you are you are you just starting admin law are you done i know some people do like three readings and when i was writing my own ncaa exams i was used to just doing one reading because i had colleagues that did three five six readings so how how far how long are you um i'm i'm starting by reading right now so the syllabus and the recommended lectures but i have to take the course because i'm from another for i'm from at least civil law just section but i am i know that i have to take that course because the ncaa has asked me to but i already have some level okay thanks and by the way i urge everyone to respond when i call on you because if you don't i'll assume you're not in the car and uh i'll admit we'll be removing you because we don't want anyone that is not willing to interact with us on the call so oindamola are you with us yes i am i am oh yes you are in your studies yes i'm actually very very um green this is my first interaction with admin law and so i'm just i haven't done much did you hear me oh yeah we can hear you well we tried as much as possible to make out what you were saying but yeah thanks uh i can see your image flashing like you're about to disappear i think it's your background that is affecting your video maybe just get some light in your direction yeah i'm trying to do a sort of stuff yeah so for me it's it's an introductory course right so i'm trying to get what it's all about before i you know start reading and studying for it but i plan to write the exams next year so it's still fairly new to me okay sounds good thanks titi lola hello kenny yeah yeah um i think i well i know i have studied but once and i intend to do it again uh with um with the knowledge that you're giving us today that's what i intend to study with for the second time um i i think i'm in the same category with naomi um so we just i just want to study with um the knowledge that you would give us today and then i hope it makes a lot of sense after that okay i hope so too thanks for me lola well i think you mentioned that you were just getting yeah um i'm so great okay great i think i have my assessment so i'm trying to decide on how to start and where to start from so after today but now i'll start the exams next year maybe like may but not early so i'll have more time to study and be prepared but think of these um introductory classes at least it's helping me to get my feet in yeah and you can always go back to the videos anyways thanks um vikas vikas kumar yes sir hello uh hi hi sir how are you great um do you want to uh turn on your video and tell us how far along you are in your studies actually in the things that i am new in this thing so i just did one reading and oh great but after that when you explain all the things i thought i might be a need of one more fresh time to understand the whole concept because it's not easy to understand all the things right especially the urban of original rights if i talk about the irex yeah these all are very important while doing the exam yeah yeah yeah i agree so i must say that it's uh if it is an introductory lecture then i will definitely say that it's very good and i enjoyed a lot thanks for that all right thank you um ife i have a lot of destruction sorry yeah i'm actually just starting i'm still i'm trying to go through the syllabus so it's a good introduction for me sorry for the noise hello everyone hi samira yeah so um i'm not sure what the question is because i just joined yeah how far long are you in your studies for admin law are you just starting do you even have a syllabus oh yes i have a syllabus no it's not that bad but um i haven't started really but i plan to start after the introductory class because i find that after someone has given us a brief um introduction into what we should be expecting on the course it's always easier to read so i plan to do that after the introductory introductory class okay thanks i think i'll just keep the rest and just quickly go because of our time lucky you uh so um so as i was explaining earlier again let me just backtrack again so what we've been doing so far i said we uh let me share my screen i like i'm a visual person i like to show you what i'm teaching at the moment uh okay where are you okay yeah so i was explaining earlier that we have different sources of procedural fairness remember i said that mean is divided basically into two broadly into two procedural finance aspects substantive aspects and i know that the procedural aspect i have this thing i refer to as the sttc approach i kind of coined that approach myself and basically what the scc approach means the sources the triggers the thresholds and the contents which helps helps you present a big picture to candidates so now that the sources we've looked at the statutes and we set the trigger for the statutes is the statute itself and the trigger for the common law there are two major triggers for common law the knights trigger also referred to as the knight three prongs test and the concept referred to as legitimate expectation and we are trying to look at this nice test and we said this test was laid down by the court in the case of night versus indian aid and for you to be able to say this night text this night's test has triggered the common law we have to look at those three factors that the courts laid down in the united states and i said those three factors include the nature of the decision the relationship between the adm and the individual and the effect of the decision and in looking at nature of the decision i said there are two different things you are looking at each constitutes 50 percent or triggering that first factor and the first part of it is legislative versus administrative decisions and final versus preliminary decision if your issue is such that it falls under the legislative decision then it doesn't point towards procedural fairness obligation being you know existing or being owed to the applicant and also if it points that the decision is a preliminary decision then preliminary decisions too don't attract procedural fitness obligations but if you're on the other hand able to say this decision is an admin decision or this decision points towards a final decision that you can sufficiently say the first factor is checked that is it attracts a duty of fairness now it leads us to the second factor the nature of the decision and sorry the relationship between the adm and the applicant rather so yeah again very tricky factor too and i think admin law is just like that and which is why you have to understand the know the deeper concept so initially this factor was laid down in night but the court amended it in donsmia so what was what what what did they call com so let me give you guys a little background of knights just a brief background so in that case there was this guy who was a public service holder he is a public servant generally and he was dismissed we would not worry about the entire fact right now he was dismissed now remember we said most government agencies will fall under the definition of admin bodies for the purpose of administrative law but again remember that there has to be a relationship it's not just the case that all governmental agencies or let me say all government actions will now be reviewable by the courts as admin decisions no there has to be some kind of relationship that makes it an admin decision so this guy was an employee of the government and he was dismissed and the government said we dismissed you based on your contract so the guy now started alleging that you can't do that you have to be procedurally fair to me before you do that but the interaction was not that of an admin decision maker and an applicant it was that of an employee and an employer which was what the employer was you know alleging but with no allegiance to the courts in that case but unfortunately they caught in night agreed with that applicant that yes they ought to have granted you procedural fairness which created you know some sort of problems in admiral for a while but in the case of donsmia the courts revised that and the court said no any public servants that is under a contract of employment cannot claim procedural fairness if he is dismissed in in line with his employment contract so which means in a nutshell that second factor is just trying to say that the relationship between the individual and the adm must be post ones to a statute it must be post ones to their status you know the relationship must be that of an adm and applicants which has been established by statues not by some sort of contract but the court also gave us some exceptions to that so if you are a judge i think i think i'm trying to remember that there are three exceptions if i judge and i mean i can't remember those exceptions right now but i'm sure you see them in your notes and hopefully if you end up in my intensive classes we're going to talk about it but there are three exceptions to what the costs in don's me are mentioned as exceptions together that contract you know doesn't apply to procedural fairness but essentially what i'm trying to let you know is that that second factor itself is not just what it seems there are several moving parts under it so if you just read you know some iraq in isolation you will miss the big picture and this is what the lca likes to likes to test they like to see the depths of a candidate they want to know whether you read some summary material and you want to quickly pass and become a lawyer you know so now to the third factor the effect of the decision this is pretty straightforward there is nothing devious or eating about this thought factor so and it's also a very subjective factor that is it depends on your scenario you have to be able to prove to the examiner that that decision is important to that individual so if you're able to look at those three decisions and you're able to say yes they all point towards the existence of a general duty of fairness then you can say what the nice three prongs test as triggered common law and then common law can now do what's filling the blanks filling the blanks of the procedural fairness obligations that are missing in this statement now that they start because sometimes it started to provide for some sometimes it started to provide for none which is where the common law will help you you know to fill in those blanks now if you look at nice test and night test does not trigger common law you have one more chance at that one more shot at that which is the concept of legitimate expectation so it comes out possible legitimate expectation basically talks about the fact that he basically talks about the fact that someone has made a representation and the uh someone from the adm has made a representation and the applicants was expecting or he had an expectation that they were going to stick to that representation but there are some there are some issues there are some inherent issues in this approach too so now legitimate expectation can be kind of called in three different ways either by express representation it can also be implied from practice and it can also be a combination of both so technically just two ways but you get it you get it you get the idea so now express representation this is simple and i'll show you an example of an express representation that can be termed legitimate expectations from the sample exam seems like you guys are having exam review and introductory class in one so when the investigator was appointed in this exam in this question the investigator told the applicant that i will conduct an interview with you before submitting my report that was an express representation however when the investigator finished the report the question says that the investigator did not contact ernest again so mr ernest had that representation from the investigator that he was going to intervene and intervene was an opportunity for him to want to respond not the fruits of the case this also feeds into content issues like we are going to talk about shortly and i'm trying to pick up the pace now because we've got about 58 minutes left uh so the investigator did not contact him and that generated a legitimate expectation but there are different caveats to legitimate expectation number one caveat is legitimate expectation cannot be used to generate what we refer to as a substantive outcome so what is a substantive outcome a substantive outcome is an outcome that is not procedural in nature it's an outcome that is not procedural in nature so what is a procedural outcome the procedure has come involves things like what we just saw in that question an opportunity to respond that's a procedural outcome an opportunity to do something that lends itself to procedures but if it has to do with something that has to do with the decision itself so say for example the investigator tells ernest that by the time i'm done with this investigation i assure you that the decision will come out in your favor that's a substantive outcome and even if it generates even if it raises some kind of legitimate expectation it will not owed because legitimate expectation cannot generate a substantive outcome at best it can generate what we refer to as high levels of procedural finance obligations and you will see that when we get to content when we start discussing the bigger factors you're going to see that so now that's one caveat to um legitimate expectation now the second way legitimate expectation can also um manifest is when it is implied from practice so what do we mean by something being implied from practice it simply means that something has been done over the time over the years that everyone knows that that is the order of doing things so everybody has relied on needs that it's going to be done that same way and i'll give you a very good example we've seen this in very good example of cases under these you know implying legitimate expectations from practice are what we call union cases that is a case that has to do with a labor union so say for example i also tutor at the post-secondary institution in alberta year and i'm part of a i'm part of the faculty association and i pay my dues every month so in doing that without the faculty the the faculty association fights for their members in such a way that the post-secondary institution cannot do what they call mass layoffs without consulting the faculty association so it's something they've been doing for several years so when the pandemic started for example and somebody approached me and said are you afraid that you could be laid off at the post-secondary institution and then i consult my faculty representative my faculty association representative and they told me no way they cannot lay you off except the consultants and then i feel like okay i have 50k in savings it's time to go on vacation because i just heard from my faculty rep that there is no way they are going to lay me off if they have not consulted them only for me to book on expedia you know flight for achievement pandemic started so say i spent 10k and then i saw that i was a charity i said okay i'm going to give you guys another 20k i was just blowing money because i thought well i'm staying at home and i'm still going to be getting paid only for me to get a letter of dismissal or whatever layoff the next day after i spoke to my faculty rep do you know that i can generate legitimate expectations implied from the practice that they always inform the faculty association before they lay stuff off but there's a caveat to that too you must know about that practice because you cannot have an expectation of a practice that you don't know about because as the name denotes legitimate expectation that is an expectation that is legitimate so i can be legitimate if you don't know so a very interesting question i was expecting somebody to ask which my previous candidate have asked me is how would they prove that i don't know that wouldn't prove that i don't know about the practice and my simple answer to that is this you are not in the exam to argue whatever they put in your scenario is what you should answer if your scenario says you don't know you don't know if your scenario says you know then you know but if your scenario is silenced then feel free to watch feel free to anybody can fill in the blanks feel free to assume but states your assumptions and when you're assuming i always i always advise candidates to play both sides say assume that the applicants knew then it would be triggered assuming that it did not know then it will not be triggered there is no way you are missing that question okay so moving on from legitimate expectations so when it comes to legitimate expectation whether it's express representation or implied from practice they are mutually exclusive that is one of them is sufficient to trigger commando so if it's the one by express representation it's enough to trigger commodore if it's the one that is implied from practice it's enough so you don't need otsu on like the night factors that you need all three so now moving on another source is the canadian charter of rights and freedom and the trigger for the canadian charter of right and freedom is section seven in fact we are always mostly just concerned with section seven when we are discussing admin law if you have done questionable forget every other section of the chapter that you know about just section seven and here we are looking at life liberty and security of persons these are the triggers for the charter now in the intensive classes if you do end up showing up for the classes we're going to look at the different dimensions of how life can trigger the chatter we're going to look at the different dimension of how liberty can trigger the chatter and this level is actually very interesting because we've seen different dimensions we've seen in the case of wilson versus bc medical where um because you know mentioned in the case that liberty is not just when they confine you in a space or you are locked in a prison or something that liberty can also include when you are deprived of the opportunity to practice your profession so in that business we said this versus we're saying this medicare says wilson's case what basically happened in that case was this guy is a doctor so he moved to bc and in bc they have this practitioner number that you have to get before you now you know the way the earth public health system works in canada most of these clinics are privately owned but you and i as citizens and permanent residents of canada eligible for the health care when we walk in and we get these health services well i'm assuming everybody's in canada but for people that are in canada because i know some people are writing these exams from outside canada when we get these health services you the doctors then do what they generate an invoice for the service they just render to you and forward it to the government and then they get paid now in bc they need a practitioner number to be able to get paid so they made it difficult for this guy to apply for that number for some reason whatsoever which you will come across in the fact of the case when you study so essentially what happened was this guy now argued that the fact that they denied him an opportunity to practice his profession in bc was an infringement on his liberty and he got agreed with him that's any any policy that we affect you know your ability to practice your profession can trigger you know and trigger liberty which means if you are looking out for just liberty in the exam for just somebody that was imprisoned or confined then you would have missed the big picture and you say section 7 is not triggered um another dimension that we also saw which again we're going to be looking at in detail is the three inmates cases i call them the inmates cases that is the present cases it actually came out in the last exam so what happens in the present case is in my classes i like using the example of prison break if you're a fan of movies in prison break season one there was a very lovely beautiful prison called fox river penitentiary and then in season three there was a very terrible prison referred to as the sonar prison that the only way you come out of the prison is when you're dead so now when the protagonist of that movie was moved from fox river to suna that can generate a liberty concern because it's been moved from a good prison to a worse prison so because the question people always ask is if you're in prison why are you claiming that your liberty was you know infringed upon you moving from prison to prison you're already in prison right but you're moving from a good prison to a bad prison or from the minimum security prisons with maximum security prison then it can also generate liberty concerns so those are the different dimensions we're going to be looking at then security um because you know give us a dimension of security in the case of blanco where the cod talks about psychological stress that is and the cut also told us that it must be as a result of his state action and that stress must have you know caused some kind of that actions have caused some kind of psychological stress on the applicants and that can also generate security so if anyone and for section seven you don't need all three to trigger section seven any one of these can trigger section seven which is why it is important to understand the different dimensions of life the different dimensions of liberty the different dimensions so it's not going to be like a one one approach that this is the only instance where life applies this is the only instance where liberty applies this is the only instance where security applies no admin doesn't work like that you will have to study the different dimensions because nca they are getting creative these days it's like they have a mandate not to pass as many lawyers as possible so they are getting created and you want to be ready yeah the past mark is 50 but you want to be ready i mean i've seen some failure reports i've seen somebody get 46 i've seen someone get 49 so trust me you may think you may think one mark does not matter it does matter so you want to be ready now another source of procedural finance obligation is the bill of rights now for the bill up now before i go to the bill of rights i expect someone to ask me why do we need the chatter if the common law has already filled in the gaps remember the reason why we're having these sources is so you can generate because if you are saying your applicant was denied these certain procedural finance obligations that the applicant was not giving notice the applicant was not they didn't disclose the fruit of the case he didn't allow him the rights to cancel let me show you guys examples of procedural finance obligations so that you guys can understand we also call them contents issues we call them content issues recording procedural finance obligations we call them participatory rights so now the syllabus deprive the syllabus um um what's it called now the syllabus divides them into two the right to be heard and the right to an unbiased decision maker that's how the syllabus divides them and under the right to be heard we have things like notice discovery delay right to overhearing open hearing right to counsel disclosure and official notice and we're going to be seeing the limits to disclosures things like privilege executive privilege spousal privilege prosecutorial privilege name every kind of privilege calm privilege um we're also going to be seeing the concept of commercially sensitive information and how it can limit disclosure in the case of quicker look i'm also going to be looking at cross-examination when does it exist when does it not exist um under the right to an unbiased decision maker we're going to look at reasons we're going to look at buyers we're going to look at pre-judgments institutional issues when when an adm decides without hearing when there's an overlap of function the role of an agency counsel and when agency councils can get creative in helping the agency frame their decisions and now the decision can be turned around to death in the process of creating the decisions or another way of looking at it is to do you know divide them into three and i'm sure you'd have seen this in some notes some notes called them prehearing issues hearing issues and posterior issues and for preheating issues you'll see things like notice discovery delay for yarn issues you see things like aura hearing open hearing right to cancer disclosure um cross-examination and for posterioring issues you see things like reasons bias institutional issues agency council and you know etc etc so now these are these are the possible procedural finance obligations because these are the kind of obligations that it costs itself in their own process we follow before they arrive at the decision which they sorry naomi thank you i just wanted to ask a quick question so legislative nature and like he said before they are not entitled to positive finance because of legislative nature once that decision affects their section 7 rights yes which was the question i was asking that you know i i hoped that someone would have asked in this class and so now the reason we needed the common law is if any of those procedural finance obligations are not sufficiently provided for in the states now if they are not sufficiently provided for any statutes then you look at the common law which is why you have to know the procedural finance obligations that you're looking for before you know it's not contained in the statute or it's not sufficiently or it's not covered in the statutes but if the common law is not triggered then you need to look at all these other three sources like the charter of rights or the bill of rights or what we refer to as the general posterior statutes which i'm going to explain shortly however even if the common law is triggered there's still a possibility that uh the section seven right of an applicant could be triggered so it's very possible for all these five sources to be triggered and but and it's also very possible for just some sources to be triggered but based on my experience i know that the ones that always will be triggered in your exam are these two because it's under the common law that they can really test for your knowledge there isn't much there's not there isn't much to write under the statutes where there's a lot to write under the charter as a right there's a lot to write under the debate of rights and there's a lot to write under the you know general procedural statutes too but if the common law isn't triggered then you look to the charter or if section seven of an applicant is triggered you look to the charter of rights also the very essence of the chapter of right on the below right is that okay let me ask you guys a question let me let me be sure that you are paying attention now let me see how creative you can get remember i said the common law fusing the gap right and when we say fill in the gap so say for example the applicant is entitled to notice discovery disclosure and the statutory provides for notice and discovery it means sorry notice discovery and reasons but it started only provides for notice and discovery but the statute doesn't cover reasons and the applicants that has approached you as a lawyer is alleging that i was not giving reasons for the decisions and i feel like it's the it's a breach of my procedural finance obligations but you as a lawyer before you before you can grant a claim for that obligation you need to ground it in a source right so now if it's not containing these tattoos and the common law sorry if the third one is not contained in the statutes then the common law first the gap but what if the statute says the applicants will not so it's contained but they forbid it they started forbids it so the statute says the applicants will not be entitled to reasons do you think the common law can do anything about that anybody i based on the studies i've done this looks like common law cannot trump a statute that has expressly excluded a content or procedural fairness so i'll say no the common law cannot do anything maybe it's in yeah that's all i have to say yeah that's correct the common law can fill in the gap but the common law can not vary the statute which is where the charter of rights comes into play so if the charter is triggered by section 7 the charter can very distorted remember the character is a constitutional document it can vary the statutes but the common law can't now before the bill of rights the reason why we need the bill of rights as against the charter is basically because of section 1a and section 2e so section 1a you know uh provides for property rights amongst many other things and section t2e provides for fundamental rights for corporations so now section 1a property right provision is not covered in this chapter so in the event that the applicant's property rights are affected then you will need section 1a to be triggered or the bill of right to be triggered rather because section 7 doesn't cover property right in fact the chatter doesn't cover property right from the beginning to the end then for section 2e that deals with fundamental rights for corporations so in the case of erwin toy and some other you know cases that follows their follow suits with the decision of the supreme court the court has decided that the attributes in section 7 does not that a corporation a corporate body does not possess the attributes of section 7 that is it's basically restricted to just individuals because so the implication of that is if your applicant is not an individual and the applicant is a corporate body the section 7 will be useless for them which is where section 2e becomes useful because it covers um corporate bodies and you will see i mean we always look at this in detail in the classes but if you see a section seven of the chapter is worded you see um um in i think any individual or something someone can correct me if you are if i'm wrong any individual or an individual or something there's a way was wanted to suggest that it's just an individual it doesn't include a corporation but for section three of the bill of rights he says every person and remember that a cooperation can be an artificial person a an individual can be a natural person so it makes it easy to interpret it that corporations are covered on that section to e now the last part of this is the general procedural statutes which are provincial laws a very good example of that is the sppa that is the statutory powers and procedures act in ontario now in my framework i recategorize that and for anyone that has purchased it was planning to purchase it you said i categorized that and brought it here in the second section and there's a reason for that the reason is that if the sppa is triggered or if the sppa is applicable then you will need to look at the sppa before you proceed down the line because the sppa is a statutes each for all internet purposes it falls under the definition of a statute for an adm and again the sppa we have it in ontario i think we have it in i'm not sure whether bc albara and another province so we're going to look at those ones in detail how does it follows how does it how does it apply in this larger framework when do you need it when don't you need it again in the entire syllabus i think it just the sppa that you know ncaa mentioned but it would be very instructive for us to also learn about the other um sources or other provincial laws of general procedures in other provinces now the next thing is for you to look at the threshold to see whether the application is met you know the treasure fabrication is made based on the facts of the scenario which then leads us to the content factors and if you look at the syllabus let me just take you guys quickly to the syllabus to understand why we need to look at the content factors and to look at baker i want someone to read i want someone to read this for us okay can someone read chapter 7 for us please who wants to volunteer naomi estella your faces say you want to volunteer okay i'll volunteer you mean number seven content of course there are obligations yep okay we turn now to this question if procedural obligations are triggered what does decision maker have to do or more concretely what is the content of these procedural obligations obligation comes from a statute the enabling act or one of the special legislative procedural codes disclosed at c b 72-78 the answer to this sorry can you scroll i'm actually reading from the screen the answer to this question is whatever the start it says is the content is the content however there may be occasions in which you will have to determine whether the statute is a complete code or leaves room for common law supplementation life is more complex if your trigger is common law cha chatter or bill of rights while there are some differences generally speaking the content where these sources apply boils down to two broad classes or procedural rules a right to be ahead and a right to an owned by as an independent decision maker within these two classes there are many details and you will need to understand what you need to understand what does it mean in practice to have a right to be heard and what does it mean in practice to have a right to an unbiased decision maker the basic issue is this the precise content of procedural rules coming from the common law shelter or bill of rights varies from case to case according to the circumstances certainly with respect to the right to be ahead you must start with the bigger considerations becca gives you a non-exclusive list of considerations that tells you at least some something about content specifically the baker test suggests whether the content to be robust or not it actually tells you a little bit more if your trigger is legitimate expectations with legitimate expectations the content of the procedural obligation is generally what was promised in the procedural promise that gave rise to the legitimate expectation in the first place if the promise was substantive you will sorry can you scroll i'm so sorry if the promise was substantive you will not be able to enforce it directly but at the very least it may lead to enhanced or more procedural fairness of course one can stop at an outcome that just says robust or loss of prosthetic fitness or not that's not enough one has to unpack the concept and focus on specific procedural entitlements how much notice was or hearing how much disclosure etc so the readings review a series of procedural entitlements and propose some lessons on when these particular procedural entitlements might exist and to what degree they are attentive to these jurisprudence a word of warning when it comes to an examination you do need to explore which procedure procedural entitlements are owed and whether they have been met but if you pay no heed to the sort of circumstances that gives rise to this this specific entitlement you may end up with an impossible laundry list or procedural rules that you that you say should apply while they really don't and sorry school yeah i think that's all okay um okay not released is not satisfactory analysis and does not generate more marks this is what i was mentioning earlier when i said when it comes to procedural you know obligations when it comes to the content of procedural obligations you are not expected to you are not expected to list all possible procedural obligations that exist in admin law which is what the syllabus is saying here the syllabus says when it comes to an exam you don't you you need this confuses me every time you do need to explore which procedural entitlements are hold and whether they have been met but if you pay no heed to the sort of circumstances that gives rise to these specific entitlements you may end up with an implausible laundry list of procedural rules that you say should apply when they really don't and an uncritical laundry list is not satisfactory analysis and does not generate more marks so this is density with nca's way of telling you that if you give me any procedural obligations that you cannot back up with facts in your fact pattern then you've wasted your time okay so now i just wanted you guys to read these so that you would understand why we need to look at the baker factors unfortunately we're going to have to run down this class in 15 minutes so i'm trying to run because our foundations class is starting in 30 minutes so this this chapter is just trying to let us understand that after you have come to the conclusion that uh procedural finance obligations are good then the next thing is obviously for you to now go ahead and unpack them and say what are these procedural obligations and before you can do that you need to do what you need to start with the baker considerations the syllabus says you must start with the bigger considerations and that this baker conservation gives you a non-exclusive list now there's a reason for this non-exclusive and hopefully we're going to be able to exploit better in our intensive classes but let me just give you a brief rundown of what it means now i have a framework for answering aboriginal questions in admin law most notes out there try to shy away from my main law uh aboriginal topics in their notes and none of them really have that framework approach as to how you can answer a question because the ncaa does not ask aboriginal related questions in the admin law exams every time in fact i don't even think they've ever asked more than once so that so there's a tendency for authors not to want to you know be in-depth about it in their notes but the reason why we have this non-exclusive where where is it the reason why graph is not exclusive in brackets here is trying to tell us that in looking at bigger factors in looking in starting with bigger factors to determine your contents there are some instances where you will need to consider some other factors and one of those instances is when you're looking at the question that deals with aboriginals because aboriginals they already have their own duty to consult framework for people that have done foundations before you know that the duty to consult framework is triggered when the crown has actual constructive knowledge of a potential aboriginal claim or title and when there's a contemplated crown conduct and the potential that the conduct will infringe on aboriginal rights or title so how exactly this interacts with the general httc framework for procedural fairness is one of the things we'll try and explore in detail because i just wanted to point out to you so that you understand what this non-exclusive in the syllabus means but for the general framework becca gives you a list of considerations that tells you something about your content essentially what baker is trying to let us understand is that maker wants to tell you whether the content will be robust or whether it will be robust that is whether it's going to be a high degree of procedural fairness expectation or it's not going to be a high degree somebody's probably wondering what do i need this for if i'm looking at my contents i'll give you a very good example nazis remember i was trying to explain to you the extent a court can go to to provide notice that they can literally decide to say they've given you notice or go i have to even order for substituted service or something now if your bigger factors points towards a lower degree of procedural fitness protection the adm may not be required to go out of their way and i'm using this example with all sense of restriction or let me know what make us use let me see a different example so for example i got a parking ticket at a train station one day for packing in between lines and i got the notice of the parking infraction which i didn't see by the way because snow was on the ground so i got the notice of the packing infraction attached to my wind to my wife on my windshield now there was another time that a friend of mine got a packing notice and they sent it to him he sent it to his house they captured his car his plates the color of the car the time everything now between the notice that i got which was a tiny slip and just showing what i was going to pay and someone that got his sophisticated notice of you know what his car looks like the time it happened you know between the two of us that that friend of mine got a better and more sophisticated notice than i did so now let's use that as an example so if your baker factors points towards a lower procedural fairness obligation and they give you the kind of notice i got to that tiny slip it's sufficient you can't argue it because biker factors is already saying that your procedural finance obligation should not be as robust as it should be normally but if because points towards my degree of procedural performance protection and i get that kind of sleep i can argue that even because now in admin law it's one thing for them to not grant you their right in the process it's another thing for them to grant you in a limited way which is where baker becomes very instructive so now again i know most of these details are a little bit complicated and it's something we have to unpack carefully and we can't really do justice to it in this class so now what are these bigger factors so these factors include um there are five of them um they i think the nature of the decision or something they are very similar to the uh night factors too yeah nature of the decision being made and the process followed and yet we want to see whether it resembles judicial process and the nature of the statutory scheme and the terms of the statute post ones to which the admin body operates here we want to see whether there are things like privative clauses whether they are alternative means of internal appeal the third one is the importance of the decision to the individual again very similar to that factor in night effect of the decision the legitimate expectation of the person challenging the decision also we want to see the choice of procedure chosen by the admin body this is a very interesting one we always refer to it as the spider-man rule that is we want to see so the principle here is saying is that the greater the latitude the adm has to choose their procedures the more procedural famous expectation that would be expected of them so essentially when it comes to the bigger factors it's more like you're going to put all five factors on a pedestal so you don't it's not mutually inclusive neither are they mutually exclusive but what you need for baker factors you need majority so at least three out of these five must point towards you know i procedural fairness and with better factors there is no right or wrong answer it can point towards either procedure affirmative obligation or it can point towards low so if he points if three points towards i then yes your bigger factors points towards i degree of procedural fairness obligation and if three or more points towards low then yes your bigger factors points towards a lower degree and either way irrespective of how you come out in the beta factors whether it's going to be i or no and again it's mostly going to be i but you never know the ncaa can get creative but either way no matter how you come out of the baker factors analysis you will still have to write your content it's just that whatever your baker factors you know tells you is what dictates the tone of your content again it may sound a little bit complicated if not right before people have read you are probably excited right now so i would want to skip the content issues because that is going to take us the next six hours to explore every one of them so we can't even exploit i want to keep the content issues and just move straight on to um the substantive aspect now a little bit about now so we are we are leaving this procedural aspect and i'll quickly try and do justice to the substantive aspect as soon as i can now we are leaving the procedural parts now this suspect this substantive aspect doesn't concern itself with any kind of procedure whatsoever it's dealing with the decision itself and a little bit of so now you know whether a decision is good or bad you need to evaluate it on the standard and that leads us to the standard of review analysis now when it comes to the standard of review a little bit of history we used to have three standards uh patent unreasonableness reasonableness simplicita and then the standard of correctness there was a whole lot of problems during that time and i think it started from the case of people there was a whole lot of issues and then dosmar came just the same with very love came now so don't that came about a decade ago and by the way admin law over admin undergoes major changes every decade i've seen that pattern so doesn't have came about a decade ago and then doesn't have changed everything and doesn't have says we're no longer using the pragmatic and functional factors we don't know using three standards we're going to have two standards of review the standards of reasonableness and the standard of correctness now don't smear did not oh sorry don't smear did not sorry i'm backtracking a little bit don't smear i did not say well i don't know using pragmatic and functional factors but don't smear introduced another way of arriving at the standard called the default assumptions so now those may have created a new problem and the new problem that doesn't have created was more or less like we had one system in place but you introduced another one without overrunning the existing system so which means and they were both decisions of the supreme court which means we started applying both the pragmatic and functional factors and the default assumptions side by side and now vaguely okay i'm trying to spare you guys these three lessons that's why i'm rushing the history because you don't need history in the exam it's just to appreciate where we are where we are now so baby love came and that video says this is the era of presumption of reasonableness that we don't need to follow the existing standard anymore uh the existing principles anymore available is always start with the presumption of reasonableness and when you start with the presumption of reasonableness you can report this presumption in two ways either by legislative intent or by the rule of law now by legislative intents there are two subcategories express provision of a standard and where there is a statutory appeal mechanism so now for this express provision of the standard whatever the standard is in the statutes is what you apply easy peasy you don't need to struggle with that now for the statutory appeal mechanism this is where it gets a little bit tricky what do you mean by statutory appeal mechanism that says there's a right of appeal provided in this statute the statute has already provided an applicant can appeal the decision of this decision-making body if they are not satisfied that's easy statutory right of appeal now what is the difference between strategic right of appeal and judicial review satisfied of appeal is an appeal that flows from the statutes judiciary review is an errands power of the court to review the decisions of the of an idea whether or not there are rights to appeal is in their statutes that's a whole story entirely anyways so now if there's a statutory appeal mechanism the standard will be correctness sorry the standard of the correctness if it's a question of law and the standard will be the standard of power people and overriding error if it's a question of facts or mixed fact and law which leads us to the next question how do you distinguish between a question of law and a question of fact and misfact and law i have a very brief answer to that so question of fact are questions that are specific only to the case at hand on the other hand questions of law are questions on how a law should be applied not just to the case at end but generally speaking for example let's say job gets fired or got fired because he was caught drinking on his lunch break caught drinking a core on his lunch break but joe sues for wrongful termination claiming that he's an alcoholic and that they are lost protecting him from being fired because he considered his alcohol addiction a medical condition the first question is to decide in this case is whether or not joe's drinking was a result of aquatism as opposed to just careless bad judgments this would be a question of fact because the question is specific only to the case at hand whether or not joey is an aquatic will have nothing to do with any other person's case even if they were seeing the employer over a similar situation now if they decide that joe was indeed drinking as a result of his acquisition the second question of whether or not there is any law that grants him job protection is a question of law it's a general question of how the law should apply to any party with the same scenario asking for the same protection anyways so the if you now come to the category that your question of law your the decision you're revealing is a question of law then it's going to be correctness standard if you come to the conclusion that it's a question of fact or mixed fact and law then it's going to be a standard of public one overriding error now these three standards reasonableness reasonableness deals with the intelligibility in the decision-making process and whether the decision falls within the range of acceptable outcomes i always is an example of a dashboard when you're throwing dots on a dashboard as long as that dot falls on anywhere on the dashboard the decision is reasonable that's the way it works but correctness on the other hand is a little bit different correctness doesn't deal with the range of outcomes correctness deals with one outcome that is why if you are using the example of your dad's body again it has to be spot-on it has to eat the booze eye because for correctness it requires one single determinate answer by the court and that is why you see that issues that attract the correctness and that are very serious issues for example question of law for example issues of rule of law like constitutional questions questions of jurisdiction between two or more admin bodies matters of central importance to the legal system i explained all these things in details in my framework for anyone that is interested in getting them but the standard of power people and overriding error was a new standard well it's not a new standard but it's the new standard to admin love to the admin law framework it's an existing standard outside of admin or framework but it got introduced it through the case of babylon and what exactly does that stand that entail it's basically saying a purple and overriding error is an error that is plain to see is very plain you don't need to look too deep to find it and another variety in error is an error that goes to the root of the decision so the cut is basically saying that when you're applying the standard of paper and overriding error we are not going to interfere except that error is palpable and overriding exactly how to apply this standards it's another thing that i would need to you know hopefully discuss if any one of you decides to join the intensive classes um i'll we need to round up now because so that we don't um and our our candidates are taking foundation so that we don't eat into their time i just want to quickly show you guys so by the way you can go to our website www.ncaguides.com i believe yeah ncaaguides.com we have a lot of resources on the website for nca candidates if you are um i don't know where is it trying to see what screen i'm sharing right now can you well guys guys see the website on my screen so our our class schedule is on the website you can see our schedule and our schedule is kind of tricky now because of the new schedule of the ncaas usually we have the classes almost at the same time but some exams are coming before some others so constitutional one for example will be starting next week in case they are taking constitutional law we'll be starting at milo in january i think criminal is starting next week to pierre is starting in december foundation is starting in december too and then for our exam review so our exam reviews will be january 9 for constitutional law january night for criminal law january 23 for professional responsibility the same date for foundations of canadian law and that window will be february 27th because administration is first week in march so uh for anyone that decides to register for our intensive classes you get to attend these exam workshops for free at no additional cost for anyone that is not interested in that you know attending intensive classes and you feel like you want to study on your own but you still need to attend an exam workshop to know how to answer questions solve past questions you can register for these separately but if you register for the intensive classes you don't need to come and register for this you're already covered and also we also have a section for the ncaa materials if you don't have notes already and you want to get notes if you do you don't you don't need to go and get another one except you want to compare but if you don't have and you want to get notes you can we have um notes for all the five core courses and the framework is also listed on the website and by the way my intensive candidates gets they get i think they get about 70 discount or so on the framework so it is ridiculously low for anyone that decides to sign up for the um intensive classes so that is that about our class for today the recordings will be available on our youtube page the links will be shared on the whatsapp the links will be shared on our whatsapp group for the introductory classes and also on our facebook groups i believe you guys got the links to these groups when you're registered for these classes so feel free to join them so yeah so you can have access to the links when they are ready on behalf of the ncaa guides thank you so much everyone for joining us today we really appreciate you joining us if you have any inquiries you can reach out to me at kenny at ncaaguides.com thank you thank you kenny very very well yeah you're welcome all right bye everybody thank you thank you thank you bye bye thank you thank you kenny you

Channel: NCA Guides

Views: 2,678

Rating: 4.8888888 out of 5

Keywords:

Id: AQJ43dhdcaQ

Length: 102min 9sec (6129 seconds)

Published: Sun Nov 22 2020