judicial review Flashcards
1
Q
separation of powers
A
- judiciary (courts, judges), common law base
- executive (prime minister, premier = head, minister = elected officials that have control over certain areas)
- legislature (MLAs, MPs)
2
Q
Administrative decision makers
A
- anyone in government (not judiciary)
- decisions by a minister (including making regs)
- decisions by civil servant
- decisions by administrative body: human rights tribunals, energy industry regulators (NS UARB), labour bords, professional regulatory associations, environmental tribunals, environmental assessment boards/commissions
3
Q
adms have prerogative and discretion
A
- within rol
- cant decide outside of an act
- must be impartial and follow procedures
- stay within given mandate
- make decisions within range of reasonable decisions
4
Q
courts vs adms
A
- courts have mandate to uphold rol
- courts cant dictate policy
- sometimes upholding rol looks like dictating policy
5
Q
grounds for judicial review
A
- making decisions or acting outside of statutory power, including regulation making
- acting outside of authority or constitution or infringing charter rights
- failing to provide procedural fairness
- failing to consider relevant matters or considering irrelevant matters
- illegal action or failure to act
6
Q
carter v canada 2015
A
- purpose vs effect: law = over broad
- assisted dying - fall into category where you can ask for death
- until 2015 illegal for docs to kill patients - 2105 supreme court decided it should be allowed under charter
7
Q
canada v bedford 2013
A
- purpose vs effect: law = disproportionate
- applicants asked court to strike down on 3 provisions of criminal code bc violated right to security of a person
- laws prevented prostitutes fro resorting to a safe, fixed location
- impose dangerous conditions on prostitution
- supreme court ruled that outcome of law did more harm than good
8
Q
r v morgentaler 1998
A
- purpose vs effect: law = procedurally unjust
- abortion - unconstitutional bc it violated women’s rights under section 7 of charter
9
Q
failure to act example
A
- bancroft et al. v minister of lands and forestry
- minister shall within 1 year of listing an endangered sp appoint a recovery team and prepare a recovery plan for the sp
- rams head lady slipper - listed in 2007, no recovery team or plan yet
10
Q
judicial review: essential ingredients
A
- decision or statute or regulation made by ADM
- grounds
- standing (ex. being personally and directly affected)
11
Q
standing
A
- person directly affected
- public interest standing; but theres a test: serious and justifiable and genuine interest in issue (experience) and reasonable and effective way to bring issue to court (no alternative)
12
Q
sierra club v canada 1999
A
- sierra club sought judicial review of government providing financial assistance to atomic energy crown corp for the construction of nuclear reactors
- said that EA required for financial assistance under CEAA
- company said that EA was being done by chinese authorities, wanted to keep it confidential to public
- confidentiality order was rejected
evans j: - must hold gov accoutnable and sometimes only can do this by letting groups in
- upholding will of parliament
- public interest groups only relevant people
13
Q
judicial review: remedies
A
- quash decision (c)
- prohibition (stop gov from doing something or continue to do something) (r)
- do something (carry out public duty) (r)
- declaration (of legal rights of parties) (c)
- injunction (must show irreparable harm will be suffered) (r)
- nothing
- damages (r)
14
Q
pembina institute v canada 2008
A
- decision: environmental assesement re Kearl oil sands
- adm: joint review panel
- pembina: panel failed to explain why ghg emissions would be negligable
- cout: deference to expertise, but experts need to articulate reasons
- remedy: ea approval quashed - panel directed to provide rational
15
Q
canada v david suzuki foundation 2012
A
- sara: minister must protect critical habitat of listed sp if not protected by other means
- DFO minister: fisheries act can be used to protect orcas critical hbitat so dont need to protect further under sara
- DSF: no - sara requires minister to protect habitat
- ground: minister misinterpreted sara and didnt fulfull mandatory duty
- justice mainville: intent of sara was to provide compulsory legal protection for critical habitat - not subject to discretion of ministerial action, in absence of enforceable provision or measure minister must make protection order to ensure protection of habitat, if ministers position were accepted, non discretionary protection scheme would be subject to ministerial discretion
