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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Understanding Administrative Law

Administrative law is something that sounds very boring, and no doubt for some it is, but as time goes by more and more legal issues that matter to people are consumed by it. Residential landlord & tenant, social assistance, (most of) auto insurance, employment, labour, WSIB, planning law, securities and many other varied and important areas of law are all administrative - and they are growing, almost daily.

In my view, the term 'administrative law' is a poor one. A better term would 'tribunal law', as it is by the adjudicative substitution of tribunals for the courts that truly defines it.

I am a big critic of admin law, seeing it as a way that the government can shed many of the 'burdens' of conducting justice thoroughly. As a consequence, we now face the injustice of the court's devoting hundreds of hours of judicial time (and all the labour and expense that goes with it) to resolving inter-corporate disputes - while the fate of poor, handicapped and otherwise vulnerable citizens is shunted down in tribunals to be allocated to a fixed maximum time (in hours, or fractions of hours) to determine whether they should retain their housing, or receive government support to enable them to eat.

Even before COVID - with it's electronic truncation of procedural practices, the tribunal system had dispensed largely with actual in-person hearings, and so the fate of the citizen could literally hinge on the outcome of a telephone call.

Administrative tribunal law, as a body of legal principles, is just that - the law dealing with the huge transition to this often terrifying and cruel new world.

The 'law of procedural fairness', which is so essential to understanding administrative tribunal law, is in reality the category to which all these as-yet undeveloped principles are allocated - that is, whenever a tribunal faces a novel problem they harken to this vague 'doctrine' to render 'justice'. The law of 'fairness' is the nursery of administrative tribunal law, the place that future administrative doctrine grows and develops - as though these problems had never occured in the legal world before. 'Fairness' is just a way for the government to re-boot all those hard-fought issues again, only this time cheaper and faster.

Most areas of 'admin law' are heavily influenced by the Statutory Powers Procedures Act (SPPA) [the subject of it's own Isthatlegal Administrative Law (SPPA) Legal Guide] - and the statutes, regulations, rules and policy guidelines that govern the particular tribunal you are dealing with. Sometimes (astoundingly) even the structure of the forms can be pivotal.

Admin law - tribunal law - whatever you chose to call it, can be accurately characterized as a 'brave new world' - with all the cultural connotations that includes. It is by no means a small or minor world for those effected - which is everyone.


. Law Society of Saskatchewan v. Abrametz

In Law Society of Saskatchewan v. Abrametz (SCC, 2022) the Supreme Court of Canada considers the role and rationale of administrative law:
[31] Administrative decision makers regularly decide issues that affect individuals’ rights, privileges and interests. This Court recognized the important role of administrative decision makers in Vavilov, at para. 4:
This area of the law concerns matters which are fundamental to our legal and constitutional order, and seeks to navigate the proper relationship between administrative decision makers, the courts and individuals in our society. In parallel with the law, the role of administrative decision making in Canada has also evolved. Today, the administration of countless public bodies and regulatory regimes has been entrusted to statutory delegates with decision-making power. The number, diversity and importance of the matters that come before such delegates has made administrative decision making one of the principal manifestations of state power in the lives of Canadians.
[32] Legislatures delegate authority to administrative decision makers because of their proximity and responsiveness to stakeholders, their ability to render decisions promptly, flexibly and efficiently, and their ability to provide simplified and streamlined proceedings that can promote access to justice: Vavilov, at para. 29.
. Aggarwal v. Sheridan College

In Aggarwal v. Sheridan College (Div Ct, 2021) the Divisional Court considered generally the standard of review in administrative matters:
[69] With respect to the alleged breaches of the Statutory Powers Procedure Act, an administrative body is the master of its own process. The Court will generally defer to the process adopted by administrative entities, especially when, as here, the tribunal has been given the discretion to develop its own processes. In this case, the alleged breaches are speculative, unsupported by any evidence of prejudice and, even if they took place (which has not been established), do not rise to the level of a violation of natural justice.
. Papouchine v. Touram LP d.b.a. Air Canada Vacations

In Papouchine v. Touram LP d.b.a. Air Canada Vacations (Div Court, 2022) the Divisional Court [Corbett J] comments on scarcity of tribunal resources as justification for an HRTO order limiting frivolous procedures:
[4] Tribunals, like courts, are custodians of a scarce public resource: time before the tribunal. Meritorious complaints cannot proceed promptly if frivolous complaints clog the system and waste resources. Some tribunals, including the Tribunal, do not charge fees to initiate and pursue a complaint, and some do not order legal costs in favour of unsuccessful parties. These practices facilitate access to justice, but they may also create a false impression that justice is “free” and that there are no constraints on matters that may be brought forward for adjudication.

[5] Justice is not free. Quite the contrary. Justice is expensive. To the extent that the cost of justice is not borne by the parties, it is borne by the public purse. Tribunals, like courts, are responsible for overseeing their own processes so that public resources are applied effectively to matters worthy of adjudication. To achieve this, tribunals, like courts, must control their own processes, including restraining vexatious conduct and abuse of process.
. Vaitheeswaran v. State Farm Mutual Automobile Insurance Company

In Vaitheeswaran v. State Farm Mutual Automobile Insurance Company (Div Court, 2022) the Divisional Court denies an administrative fairness argument that the tribunal had unfairly restricted the appellant's "length of submissions" and refused "entertain new arguments", on the basis that "(a) limit on new claims and arguments in such circumstances was designed to prevent unfairness in the process and to manage the Tribunal’s resources":
[22] With respect to the Appellant’s assertion that she was denied procedural fairness, principally by the limit placed by the Adjudicator upon the length of submissions and the refusal to entertain new arguments on reconsideration that had not been raised at the hearing, I see no breach of procedural fairness that would warrant interference with her decision. The Adjudicator’s management of the process was well within her discretion and was clearly designed to require focussed submissions in the context of a complex Catastrophic Impairment claim. A limit on new claims and arguments in such circumstances was designed to prevent unfairness in the process and to manage the Tribunal’s resources, considerations that are well within the discretion of the Adjudicator’s discretion to achieve by the controls imposed by her (see: Iqbal v. Gore Mutual Insurance Company, 2021 ONLAT 20-005901/AABS).


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