Question 1

Short Answer Question

a. What do you understand about Judicial review and its types?
b. List down the sources of procedural obligation.

Answer
a. Judicial review in Canadian administrative law refers to the power of the courts to review
the decisions and actions of administrative bodies, such as government agencies,
tribunals, and commissions, to ensure they comply with the law and adhere to principles
of fairness. This process helps maintain the rule of law and accountability in the
administrative process. There are two types of judicial review in Canadian administrative
law.
Jurisdictional Review: This type of review focuses on whether the administrative body
had the legal authority or jurisdictions to make the decision or take the action in
question. Courts assess whether the administrative body stayed within the bounds of its
statutory powers and did not act ultra vires.
Review on the Merits: This type of review delves into the substance of the administrative
decision, examining whether it was reasonable, justified, and procedurally fair. Courts
assess whether the decision was based on relevant considerations, free from errors of
law, supported by evidence, and made through a fair process.

b. Enabling statute – the trigger is in the statute itself. This means that if procedural
obligations come from statute, decision-maker must comply with that statute otherwise,
the duty of fairness will be triggered.
Subordinate Legislation – The trigger is in the legislation itself.
Policies and guidelines – The trigger is in the legislation itself.
General Procedural Statutes – The trigger is in the codes.
Common Law – The triggers are the rules of Natural Justice – 1) A party affected by a
public authority’s decision is entitled to be heard by that authority which is also known
as Audi Alteram Partem. 2) Nemo Judex in Sua Causa which means no one is judge in
their own case. It gives rights to an impartial and independent hearing.
Charter of Rights – The Trigger is in Section 7.
Bill of Rights – The Trigger is in Section 1(a) and Section 2(e).

Question 2
Abraham was a…………………………………… Federal Military Board.

Answer
Issue

Is Abraham entitled to a degree of fairness?

Rule

The principal source providing the right for judicial review are:
1. Act/Statute itself.
2. Subordinate legislation
3. Policy and guidelines
4. General procedural statutes
5. Common Law entitlement to procedural fairness
6. Charter of Rights
7. Bill of Rights
8. Legitimate Expectation

The concerned legislative framework mandated –

 That there should be a preliminary inquiry in the nature of an informal statement
recording process be undertaken. This would later be submitted as a departmental
recommendation to the Federal Military Board which would be called upon to make
the final decision.
 That the officer against whom the preliminary inquiry is being made, is entitled to
present his/her case and have access to the recommendation that was ultimately
issued.

Analysis

The enabling statute does not trigger the duty of fairness.

Subordinate Legislation does not trigger the duty of fairness.
Policies and Guidelines do not trigger the duty of fairness.
General procedural statutes do not trigger the duty of fairness.

In order to determine whether the Common Law triggers the duty of fairness, we have to
look at the Knight “Three-Prong” Rule and Doctrine of Legitimate Expectation –

Knight Three-Prong Rule consists of three principles that must be considered to determine if
the duty of fairness applies –
1) The nature of the decision – If the decision is of a more final nature, it is more likely that
the duty of fairness.
2) The relationship between the administrative body and the individual – if the nature of
the relationship is that of an employer and employee then the duty of fairness will be
triggered.
3) The effect of the decision on the individual’s rights – If the decision significantly impacts
an individual’s rights, interests, property, or liberties, the duty of fairness applies.

If all the above-mentioned principles applies, then the duty of fairness will be there.

In the current case, the decision is not of final nature as the decision is just a departmental
recommendation and not the final decision from the Federal Military Board. In order for this
recommendation to become a final decision, the recommendation must be submitted to the
 Federal Military Board and then they will announce the final decision. This recommendation
is not binding to the Board and only possess persuasive value.

According to the mandate, Abraham should have access to the departmental

recommendation that was issued but it was not known to him. Here, there is no duty of
fairness as the decision itself is not of final nature.

Conclusion

In the current scenario, Anthony is not entitled to the duty of fairness as the decision itself is
not of final nature. As per the knight’s Three Prong Test, if the decision is not of final nature
then the duty of fairness will not apply.

Question 3
Daniel…………………………………………………………. Expectation?

Answer
Issue

Can Tom use the doctrine of legitimate expectation to get an injunction on the
examinations?

Rule

Legitimate Expectation

Analysis

Legitimate Expectations is a part of the duty of fairness and applies when a promise or
representation is made by a delegate to an individual, creating a legitimate expectation that
a certain procedure will be followed. This doctrine only applies to procedural fairness and
does not grant substantive rights outside the procedural domain.

In order to apply the doctrine of legitimate expectations, certain conditions must be met:

1) There must be a clear and unambiguous representation by a government

authority or delegate.
2) The expectations must align with the public authority’s statutory role, and the
person making the promise must have the authority to do so.
3) Legitimate expectations create procedural rights, not substantive rights, as
substantive outcomes are the domain of decision-makers.
4) If someone wants to challenge a decision based on what they expected, they
don’t always have to prove that they knew about it or that it caused them harm.

In the current case, Daniel rejected Tom’s request to be present during the investigation.
While the official prior to Daniel always allowed him to be present during such investigations.
Firstly, there is no clear and unambiguous representation by the official prior to Daniel as the
official merely allowed Tom’s request and did not specifically ask him to stay during the
investigation. Lets just say there is a legitimate expectation due to the official before, then it
only allows Tom to make a request which is further at discretion of the official to allow it or
not.

Secondly, the delegates from the Tax Department are in no position to make a decision on
who can stay and who cannot during the investigation as their duty is only to comply with
the provisions of the Income Tax Act and investigate the financial affairs.

Due to the reasons mentioned above, Tom cannot cite the doctrine of legitimate expectation
in his arguments.

Conclusion

In the current case, there is no clear representation by the official and the official doesn’t
have the authority to decide who can stay and who cannot stay during the investigation. In
order to apply the doctrine of legitimate expectations, these conditions are supposed to be
met and therefore, Tom cannot cite the doctrine in his argurements.