ADMINISTRATIVE LAW
TESTS AND TEMPLATE FOR NCA EXAMINATION
This Template is based on the following text, as prescribed by the NCA: Van Harten, Heckman, Mullan
and Promislow, Administrative Law: Cases, Text & Materials (Toronto: Emond Montgomery
Publications Ltd., 7th ed., 2015); and Colleen Flood and Lorne Sossin, Administrative Law in Context
(Toronto, Emond Montgomery, 3rd ed., 2018).
Disclaimer(s)
This template have been compiled utilizing a variety of sources (recommended textbooks, online legal
websites – CanLII and Lexum, other textbooks, case law, scholarly articles, wiki, etc.). You are expected
to purchase a copy of the suggested text as per the NCA recommendation.
Hours have been spent editing and reviewing the notes to ensure accuracy. Nonetheless, human error
is always possible. As such, if a mistake or spelling error is found, please inform me immediately so
that the appropriate adjustment(s) can be made.
The information herein does not constitute legal or other professional advice.
You have purchased notes for your personal use only (personal non-commercial use). They are to be
utilized solely to prepare and study for the NCA examinations. The study notes herein are not to leave
your possession under any circumstances.
This document is not to be shared or distributed in any fashion or form. You have been entrusted with
keeping it confidential, upon accepting and opening the document.
Page 1 of 53
,Instructions:
The purpose of this template is not to replace your own hard work or reading of the materials but
serves to assist you with the analysis and answer formulation during the examination. The NCA
syllabus is an excellent resource and should be used in conjunction with these notes and your
readings of the required materials. The material contained herein are to be used by students familiar
with the study material.
LEGEND:
I use a lot of shorthand forms in these notes, I will try and lay out the most common one’s used
b/c - b/c
b/t – between
CA – Court of Appeal
CL – Common Law
def’n – definition
fed – federal
Gov’t – government
LE – legitimate expectation
m/b – must be
PF or PFR – procedural fairness
prov – provincial
rec’d – received
req’ – require (includes variations like req’ing, req’d – requiring and required)
SoR – standard of review
s/b – should be
SCC – Supreme Court of Canada
TJ – Trial Judge
w/ - with (includes variations like w/ stand, w/hold, w/o – without)
Page 2 of 53
, S.96 COURTS AND PRIVATIVE CLAUSE
Three Part Test:
1. Historical inquiry: is the administrative decision in question similar to one
that, at the time of Confederation, would have been exclusively within the
power of a superior, district, or country court? (jurisprudence suggests a
broad interpretation to ensure the protection of s96 courts)
2. Judicial versus legislative/administrative power: is the impugned power a
‘judicial’ power as opposed to a legislative/administrative one? A judicial
power is where there is a private dispute between parties, adjudicated
through application of a recognized body of rules and in a manner consistent
with fairness and impartiality.
3. Contemporary character: even if the decision-making power was historical
under the jurisdiction of a superior, district, or county court, has the
decision-making power in its contemporary institutional setting sufficiently
changed its character such that it cannot conform to the jurisdiction of a
court? Eg: noted in Tomko v Labour Relations Board (NS) [1977] 1 SCR 112
– while referring to the Nova Scotia Labour Relations Board, that the
adjudicative functions of such a board were part of its broader
administrative and policy-making role as administrator of the labour
relations legislation. Therefore, agreed that one could not compare labour
relations board’s cease and desist order with the jurisdiction of a superior
court to issue a mandatory injunction to halt illegal activities.
Crevier v AG (Quebec), [1981] 2 SCR 220 –
There is a constitutionally recognized right to judicial review, at least of questions
of jurisdiction, that cannot be displaced by privative clause, no matter how
strongly worded.
Chief Justice Laskin noted that a provincial government, in creating an
administrative tribunal, could include a privative clause if it allowed superior court
jurisdiction to review questions of jurisdiction even if there was limited judicial
review of all other kinds of decisions from the tribunal. However, if the wording of
the privative clause ousted review by courts over even strict jurisdictional
questions, then the clause was not constitutionally valid because the province had
de facto created s 96 court. The court in Crevier concluded that to give a provincial
tribunal unlimited jurisdiction to interpret and apply law and then preclude
supervision by provincial superior courts created a s 96 court.
PROCEDURAL FAIRNESS
[TEMPLATE WITH SKELETON ARGUMENTS]
INTRODUCTION
Page 3 of 53
,(Say): With regard to the common law of procedural fairness or natural justice as
required under s 7 of the Charter, the court, in reviewing the actions of a tribunal,
is not concerned in the actual decision (substance), but rather in the procedure
followed in coming to such decision. To act fairly the decision-maker must comply
with the applicable procedural obligations set by the law. These obligations are
informed by principles of fairness and entail a diverse range of practices. It is
important to note here that procedural fairness analysis is contextual
PROCEDURAL FAIRNESS
(Say): The relevant enquiry is whether the decision-maker acted fairly in making
her decision and not whether the final decision itself is fair. To act fairly, the
administrative decision-maker must comply with the applicable procedural
obligations set by the law. Fairness is a minimum duty that must be met, and
courts ask whether the procedural protection provided in particular circumstances
was adequate, not ideal: Nicholson and Cardinal v Kent. These obligations are
informed by the principles of fairness and entail a diverse range of practices. At
the outset, it is to be noted that the standard of review for procedural fairness is
correctness.
Step 1: You need to first examine whether the statute provides for any procedural
obligations or limitation on it, check page: 6. If it does, then the next step to see if
the concerned matter triggers application of the Charter, Bill of Rights, duty to
consult or other constitutional provisions, which can be used to oust the provision.
COMMON LAW PROCEDURAL FAIRNESS
A. Threshold:
(Say): The general rule (with exceptions) is that the duty of fairness applies to
‘every public authority making an administrative decision which is not of a
legislative nature and which affects the rights, privileges or interests of an
individual’ (Cardinal). However, this general rule will yield to clear statutory
language or necessary implication to the contrary.
(Say): The first part of any procedural fairness review is the threshold analysis
outlined by the court in Knight v. Indian Head School Division [1990] 1 SCR 653.
Here the court is not asking what rights encompass but only whether there should
be any entitled to procedural fairness at all. In other words, the question is
whether the court should review the admin decision-maker’s procedures or
whether it is more appropriate to conclude that whatever the decision-maker
decided to do by way of procedure is sufficient.
(Say): Question to be asked: Is the duty of fairness triggered or is the
decision being made one that should be made fairly?
(if the answer is no, the analysis ends, and the decision-maker can, as a matter of
law, proceed without the responsibility of common law obligations. If yes, move to
the second question.)
Page 4 of 53
, (Say): The CL right to procedural fairness can only be invoked if the given
circumstances pass the threshold of the 3-prong test laid down in Knight, which is
as follows:
Carry out the Three-pong test. Check page 9 for factors to be kept in mind
1) the nature of the decision to be made by the admin body (Say)
Check for the Form & finality of the decision. No PF for
legislative/general/policy decisions, or preliminary or investigative decisions
(Say): In the case at bar, the decision made by the …………. was of a final (or
preliminary/interlocutory decision proximate to the final decision such that it
materially impacts or determines the final decision- Abel) and of specific nature,
directed as it was at ………….’s interest/privilege/right of ……………………….
(state the right/interest/privilege). As such, the decision could possibly entail
the existence of a duty to act fairly on the part of the ……………...
2) the relationship b/t that body and the individual (Say)
if it is employer/ee relationship, check Dunsmuir exception.
3) the effect of that decision on the individual’s rights (Say)
decision needs to be significant and important. Includes affecting family,
nationality and loss of employment.
(Say): In this case, the decision by the ……………… is significant and important to
the ………………… as it results in ………[outline the hardship/effect of the decision
on the party].
(Say): In Homex Realty and Development Co v Wyoming (Village), [1980] 2 SCR,
the court advised that substance is more important that form in determining
whether and the extent of any procedural obligations owed.
(Say): On the whole, the nature of the decision, the relationship existing between
the ………… and the ……….. and the impact on the …………. of the impugned
decision lead to the conclusion that there was a general duty to act fairly on the
part of the ……………… in the circumstances of this case.
Legitimate Expectations
If LE can be claim (only if!) undertake the legitimate expectations test, which is
laid down further in page 9.
LE arises either by promising (by words or conduct) of a procedural process or a
substantive result. In the case of latter, legitimate expectation will require higher
procedural protection (LE cannot lead to substantive result). Check page 11 for
Doctrine test.
Exceptions (if they apply)
Check Page 12 for application of the exceptions.
B. Level of procedural fairness
Page 5 of 53
TESTS AND TEMPLATE FOR NCA EXAMINATION
This Template is based on the following text, as prescribed by the NCA: Van Harten, Heckman, Mullan
and Promislow, Administrative Law: Cases, Text & Materials (Toronto: Emond Montgomery
Publications Ltd., 7th ed., 2015); and Colleen Flood and Lorne Sossin, Administrative Law in Context
(Toronto, Emond Montgomery, 3rd ed., 2018).
Disclaimer(s)
This template have been compiled utilizing a variety of sources (recommended textbooks, online legal
websites – CanLII and Lexum, other textbooks, case law, scholarly articles, wiki, etc.). You are expected
to purchase a copy of the suggested text as per the NCA recommendation.
Hours have been spent editing and reviewing the notes to ensure accuracy. Nonetheless, human error
is always possible. As such, if a mistake or spelling error is found, please inform me immediately so
that the appropriate adjustment(s) can be made.
The information herein does not constitute legal or other professional advice.
You have purchased notes for your personal use only (personal non-commercial use). They are to be
utilized solely to prepare and study for the NCA examinations. The study notes herein are not to leave
your possession under any circumstances.
This document is not to be shared or distributed in any fashion or form. You have been entrusted with
keeping it confidential, upon accepting and opening the document.
Page 1 of 53
,Instructions:
The purpose of this template is not to replace your own hard work or reading of the materials but
serves to assist you with the analysis and answer formulation during the examination. The NCA
syllabus is an excellent resource and should be used in conjunction with these notes and your
readings of the required materials. The material contained herein are to be used by students familiar
with the study material.
LEGEND:
I use a lot of shorthand forms in these notes, I will try and lay out the most common one’s used
b/c - b/c
b/t – between
CA – Court of Appeal
CL – Common Law
def’n – definition
fed – federal
Gov’t – government
LE – legitimate expectation
m/b – must be
PF or PFR – procedural fairness
prov – provincial
rec’d – received
req’ – require (includes variations like req’ing, req’d – requiring and required)
SoR – standard of review
s/b – should be
SCC – Supreme Court of Canada
TJ – Trial Judge
w/ - with (includes variations like w/ stand, w/hold, w/o – without)
Page 2 of 53
, S.96 COURTS AND PRIVATIVE CLAUSE
Three Part Test:
1. Historical inquiry: is the administrative decision in question similar to one
that, at the time of Confederation, would have been exclusively within the
power of a superior, district, or country court? (jurisprudence suggests a
broad interpretation to ensure the protection of s96 courts)
2. Judicial versus legislative/administrative power: is the impugned power a
‘judicial’ power as opposed to a legislative/administrative one? A judicial
power is where there is a private dispute between parties, adjudicated
through application of a recognized body of rules and in a manner consistent
with fairness and impartiality.
3. Contemporary character: even if the decision-making power was historical
under the jurisdiction of a superior, district, or county court, has the
decision-making power in its contemporary institutional setting sufficiently
changed its character such that it cannot conform to the jurisdiction of a
court? Eg: noted in Tomko v Labour Relations Board (NS) [1977] 1 SCR 112
– while referring to the Nova Scotia Labour Relations Board, that the
adjudicative functions of such a board were part of its broader
administrative and policy-making role as administrator of the labour
relations legislation. Therefore, agreed that one could not compare labour
relations board’s cease and desist order with the jurisdiction of a superior
court to issue a mandatory injunction to halt illegal activities.
Crevier v AG (Quebec), [1981] 2 SCR 220 –
There is a constitutionally recognized right to judicial review, at least of questions
of jurisdiction, that cannot be displaced by privative clause, no matter how
strongly worded.
Chief Justice Laskin noted that a provincial government, in creating an
administrative tribunal, could include a privative clause if it allowed superior court
jurisdiction to review questions of jurisdiction even if there was limited judicial
review of all other kinds of decisions from the tribunal. However, if the wording of
the privative clause ousted review by courts over even strict jurisdictional
questions, then the clause was not constitutionally valid because the province had
de facto created s 96 court. The court in Crevier concluded that to give a provincial
tribunal unlimited jurisdiction to interpret and apply law and then preclude
supervision by provincial superior courts created a s 96 court.
PROCEDURAL FAIRNESS
[TEMPLATE WITH SKELETON ARGUMENTS]
INTRODUCTION
Page 3 of 53
,(Say): With regard to the common law of procedural fairness or natural justice as
required under s 7 of the Charter, the court, in reviewing the actions of a tribunal,
is not concerned in the actual decision (substance), but rather in the procedure
followed in coming to such decision. To act fairly the decision-maker must comply
with the applicable procedural obligations set by the law. These obligations are
informed by principles of fairness and entail a diverse range of practices. It is
important to note here that procedural fairness analysis is contextual
PROCEDURAL FAIRNESS
(Say): The relevant enquiry is whether the decision-maker acted fairly in making
her decision and not whether the final decision itself is fair. To act fairly, the
administrative decision-maker must comply with the applicable procedural
obligations set by the law. Fairness is a minimum duty that must be met, and
courts ask whether the procedural protection provided in particular circumstances
was adequate, not ideal: Nicholson and Cardinal v Kent. These obligations are
informed by the principles of fairness and entail a diverse range of practices. At
the outset, it is to be noted that the standard of review for procedural fairness is
correctness.
Step 1: You need to first examine whether the statute provides for any procedural
obligations or limitation on it, check page: 6. If it does, then the next step to see if
the concerned matter triggers application of the Charter, Bill of Rights, duty to
consult or other constitutional provisions, which can be used to oust the provision.
COMMON LAW PROCEDURAL FAIRNESS
A. Threshold:
(Say): The general rule (with exceptions) is that the duty of fairness applies to
‘every public authority making an administrative decision which is not of a
legislative nature and which affects the rights, privileges or interests of an
individual’ (Cardinal). However, this general rule will yield to clear statutory
language or necessary implication to the contrary.
(Say): The first part of any procedural fairness review is the threshold analysis
outlined by the court in Knight v. Indian Head School Division [1990] 1 SCR 653.
Here the court is not asking what rights encompass but only whether there should
be any entitled to procedural fairness at all. In other words, the question is
whether the court should review the admin decision-maker’s procedures or
whether it is more appropriate to conclude that whatever the decision-maker
decided to do by way of procedure is sufficient.
(Say): Question to be asked: Is the duty of fairness triggered or is the
decision being made one that should be made fairly?
(if the answer is no, the analysis ends, and the decision-maker can, as a matter of
law, proceed without the responsibility of common law obligations. If yes, move to
the second question.)
Page 4 of 53
, (Say): The CL right to procedural fairness can only be invoked if the given
circumstances pass the threshold of the 3-prong test laid down in Knight, which is
as follows:
Carry out the Three-pong test. Check page 9 for factors to be kept in mind
1) the nature of the decision to be made by the admin body (Say)
Check for the Form & finality of the decision. No PF for
legislative/general/policy decisions, or preliminary or investigative decisions
(Say): In the case at bar, the decision made by the …………. was of a final (or
preliminary/interlocutory decision proximate to the final decision such that it
materially impacts or determines the final decision- Abel) and of specific nature,
directed as it was at ………….’s interest/privilege/right of ……………………….
(state the right/interest/privilege). As such, the decision could possibly entail
the existence of a duty to act fairly on the part of the ……………...
2) the relationship b/t that body and the individual (Say)
if it is employer/ee relationship, check Dunsmuir exception.
3) the effect of that decision on the individual’s rights (Say)
decision needs to be significant and important. Includes affecting family,
nationality and loss of employment.
(Say): In this case, the decision by the ……………… is significant and important to
the ………………… as it results in ………[outline the hardship/effect of the decision
on the party].
(Say): In Homex Realty and Development Co v Wyoming (Village), [1980] 2 SCR,
the court advised that substance is more important that form in determining
whether and the extent of any procedural obligations owed.
(Say): On the whole, the nature of the decision, the relationship existing between
the ………… and the ……….. and the impact on the …………. of the impugned
decision lead to the conclusion that there was a general duty to act fairly on the
part of the ……………… in the circumstances of this case.
Legitimate Expectations
If LE can be claim (only if!) undertake the legitimate expectations test, which is
laid down further in page 9.
LE arises either by promising (by words or conduct) of a procedural process or a
substantive result. In the case of latter, legitimate expectation will require higher
procedural protection (LE cannot lead to substantive result). Check page 11 for
Doctrine test.
Exceptions (if they apply)
Check Page 12 for application of the exceptions.
B. Level of procedural fairness
Page 5 of 53
