Chapter 11 - Using Administrative Decision-making to Protect the Environment

Question 1

Define Administrative Decisions:

Answer 1

Decisions made by government officials or tribunals pursuant to a statute that sets out the decision-making process​

Question 2

What 3 roles can make decisions?

Answer 2

• Government Employee
• Cabinet Minister
• Impartial decision-maker

Question 3

What procedure are public hearings similar to?

Answer 3

Quasi-judicial

Question 4

Law governing administrative procedures attempts to balance ____________ and ___________

Answer 4

efficiency, fairness

Question 5

What is the fundamental procedural concept?

Answer 5

Natural Justice (AKA procedural fairness)

Question 6

What do the common law rights of procedural fairness do?

Answer 6

They apply and fill any gaps

Question 7

What are the three main elements of Tribunal Procedures?

Answer 7

1. Reasonable notice of proposed decision and key issues against affected parties​
2. A fair opportunity to be heard, orally or in writing​
3. An impartial and independent decision-maker

Question 8

Define Evidence

Answer 8

Facts, objects, and (sometimes) opinions that are presented to decision-maker for the purpose of reaching a decision

Question 9

True or false: Heresay evidence and opinions are not allowed in tribunals

Answer 9

True

Question 10

What does the record of tribunal proceeding include?

Answer 10

Includes the decision challenged and all evidence and arguments presented at a hearing​

Question 11

Obtaining party status may depend on __________________

Answer 11

meeting a statutory test (being “directly affected” by a decision)

Question 12

What may tribunals do if there is no statutory test?

Answer 12

May create their own tests / categories

Question 13

Tribunals must (as their statutes require) reach explicit _______________

Answer 13

final decisions

Question 14

True or false: Some tribunals can force unsuccessful parties to pay the costs of successful parties

Answer 14

True

Question 15

What is a major criterion of assessing costs in tribunal procedures?

Answer 15

Whether the applicant has made a substantial contribution to the appeal and has focused on the important issues​

Question 16

True or false: There is an automatic right to appeal an administrative decision; an appeal must be provided for in the statute​

Answer 16

False, there is no automatic right to appeal.

Question 17

What are the two forums of appeal?

Answer 17

1. Appeals to another administrative tribunal
2. Appeals to a court

Question 18

What are two types of appeals?

Answer 18

1. Appeals de novo (new hearings where everything is reheard and reconsidered and new evidence or arguments may be presented)​
2. Appeals on questions of law and jurisdiction (no new evidence, limited to legal arguments)

Question 19

What has established a number of specialized tribunals to hear appeals from administrative decisions?

Answer 19

Provincial Legislation

Question 20

What are three advantages of environmental appeal boards?

Answer 20

1. Members have environmental expertise​
2. Less formal procedures​
3. Usually include a well-developed mediation process

Question 21

What is the main disadvantage of appeals?

Answer 21

Sometimes (as in Alberta) appeals are subject to approval by environment ministers​

Question 22

Define Substantive Judicial Review:

Answer 22

judicial review of the merits, or substance, of administrative decision-making

Question 23

Standing for judicial review requires what three things?

Answer 23

1. That there is a serious legal issue to be determined that affects the applicant directly​
2. That the applicant has a “genuine interest as a citizen” in the decision​
3. That there is no other reasonable and effective manner in which the issue may be brought before the court

Question 24

What are the two standards of review involved when reviewing an administrative decision?

Answer 24

1. Correctness
2. Reasonableness

Question 25

Define Standard of Review:

Answer 25

The depth of the review done by the court and reflects how much deference will be afforded to the administrative decision-maker

Question 26

What does the court look at when determining which standard of review applies?

Answer 26

Whether the tribunal interpreted its empowering statute and at any relevant cases

Question 27

What four factors are considered by the court when determining standard of review?

Answer 27

1. Privative clause​ 2. Expertise of the decision-maker​ 3. Policy versus technical issue​ 4. Law versus fact

Question 28

Because procedural fairness involves legal rights, the standard of review associated with judicial reviews based on procedural fairness is always ______________

Answer 28

correctness

Question 29

A court may find that an environmental decision-maker made a reviewable error on grounds asserted by the applicant by what three determining factors?

Answer 29

1. Substantive ultra vires​ 2. Real or apprehended bias​ 3. Breach of procedural fairness, etc.

Question 30

True or false: There are limited constitutional grounds for judicial review in environmental law

Answer 30

True

Question 31

Government may establish _____________ into environmentally sensitive topics

Answer 31

public inquiries

Question 32

When do public inquires often appear?

Answer 32

More often arise when environmental problems emerge or disasters occur

Question 33

True or false: Public inquiries operate independently of governments

Answer 33

True