gotta study for my law exam tomorrow so for @threadapalooza I offer you 100 tweets about... Administrative Law

1. Administrative law concerns the legality of administrative decision-making and aims to ensure that public decisions are rendered in a fair and legally justifiable manner.

2. It applies to public officials and insitutions who exercise delegated authority as well as private organizations and individuals whose decisions affect the public interest, so there's some overlap with constitutional law. It's a complex, controversial area of law.

3. In dealing with the conduct of public officials, it is the area of law that deals most directly with the Rule of Law - the idea that those who create and implement the law or exercise legally delegated power are still bound by the law themselves; they can't act arbitrarily.

4. The Rule of Law is a touchstone in legal and political discourse but it's rarely unpacked or defined. It can be contrasted with ideas like the "Rule of Man" or the "Rule of God." It basically serves as an evaluative standard used to assess the legitimacy of governmental action

5. When it does get unpacked and defined, it can be unpacked and defined in different ways. Amongst legal scholars there are "thin" and "thick" conceptions of the Rule of Law.

6. The "thin" conception of the Rule of Law revolves around the judicial branch having a monopoly over the interpretation of the law and a responsibility to enforce it strictly according to its terms. Here, the Rule of Law essentially just comes from separation of powers.

7. The "thick" coneption of Rule of Law is more abstract and considers many factors that play into what it looks like when the Rule of Law has force: generality, publicity, prospectivity, intelligibility, consistency, practicability, stability, congruence.

8. The case we talk about to examine these differing conception of the Rule of Law in Canada is from 1959, it's called Roncarelli v Duplessis. TL;DR the Quebec premier refused to issue a liquor license to a bar owner bc they supported religious activists the premier did not like.

9. The dissent in the case followed the "thin" conception of the Rule of Law. They saw that the enabling legislation gave the Liquor Board full discretion in licensing decisions and argued that to restrict this broad discretion would go against the intention of the legislation.

10. The majority of opinion (which became the law) followed the "thick" conception & decided that it was implied that even discretionary decisions made by public officials must be made in "good faith" ie not arbitrarily, but in connection w the purpose of their legal power. Yay!

11. So the Rule of Law is at stake when public officials make decisions that impact people. Roncarelli stands for the fact that those decisions ought to be substantively fair - the outcome of the decisions should reflect a reasonable application of the law to the relevant context

12. But as much as the Rule of Law is at stake when it comes to *what* a public official decides, it is also at stake when it comes to *how* a public official decides. This gives rise to the main principle guiding Administrative jurisprudence - Procedural Fairness.

13. From Procedural Fairness we get all sorts of principles & remedies & fancy Latin things like certiorari (remedy to set aside an administrative decision) & mandamus (remedy used to compel an administrative decision to fulfill a duty (like an order of specific performance)) & -

14. - habeas corpus (remedy used to compel an administrative official to justify a person's detention or imprisonment). These principles and remedies sketch out what due process means in its broadest sense.

15. Fortescue J once famously said that "not even God failed to provide Adam and Eve with a hearing before casting them out of the Garden of Eden." So I guess due process is divine of origin, perhaps.

16. To some extent the concept of Procedural Fairness was enshrined in constitutional values (see for ex Crevier v AG (Quebec) et al) but the concept was established as a principle of the common law by a 1979 case, Nicholson v Haldimand-Norfolk Regional Police Commissioner.

17. under the Police Act at the time, new officers were subject to an 18 month probation period. Nicholson had only worked 15 months when he was fired for requesting extra pay for working overtime. No reasons, no discussion, just, you're fired.

18. The dissent was like "bro, that sucks but probation eh what're you gonna do? it is what it is." But the majority was like nah, even if you're on probation there are basic elements of fairness that should show up in the way you're treated by anyone exercissing statutory powers

19. Two of these basic elements have fancy latin phrases for them. First, "audi alteram partem" means "listen to the other side"; ppl are entitled to info & the ability to participate meaningfully in the decision-making process

20. So "audi alteram partem" underlies a variety of procedural rights (ex right to notice, disclosure, make arguments, cross-examine, etc). These rights ensure a person knows their "case to meet" when their interests may be affected by the decision of a public official.

21. Another basic principle of fairness is described by the latin phrase "nemo judex in sua causa" which means "nobody is the judge in their own cause"; decision-makers must be impartial. This maxim gives rise to rules requiring administrative independence, prohibiting bias, etc.

22. These maxims are instrumentally & intrinsically valuable (unlike other principles of good governance, ex. transparency). The principles of procedural fairness ensure better outcomes but also in & of themselves reflect respect for those affected by the exercise of state power.

23. So Canada decided Procedural Fairness has instrumental & intrinsic value worthy of being entrenched in the common law. Awesome! If this was all that needed to be done I'd love law school. Unfortunately, the nitty gritty of how to implement things needs to be figured out too.

24. Baker v Canada is the leading case on this; the Baker Framework sketches out when a duty of procedural fairness is owed & what to consider in such cases to determine what the duty requires in order for decisions to be considered procedurally fair by courts on judicial review.

25. The facts of Baker are too sad so I'm not gonna get into them. But TL;DR (it really is too long, I did read it though) the case puts forward five factors to consider in determining the threshold at which a duty of procedural fairness applies and the content of such a duty.

26. These factors are: the nature of the decision/the process followed, the statutory scheme/terms of the enabling legislation, the importance of the decision to those affected by it, the legitimate expectations of those challenging the decision, & deference to decision-makers.

27. (Note that this is a common law framework so if the common law does not apply to you ex. bc you're not a citizen you may have to rely on the Constitution. Luckily s 7 says "Everyone has the right to life, liberty and security of the person and the right not to be deprived...

28. ...thereof except in accordance with the principles of fundamental justice." Here, "everyone" incl non-citizens & "the principles of fundamental justice" incl procedural fairness so there are ways to argue for procedural protections where the common law doesn't apply.)

29. There are other exceptions where the duty of procedural fairness won't apply too. When the gov't engages in purely commercial/contractual relations they don't owe any special procedural fairness in that context.

30. The duty of procedural fairness doesn't apply to all stages of the decision-making process either.
Preliminary processes where issues are being investigated but no final decisions are made & no one's rights/interests/privileges are affected don't have to be procedurally fair

31. The most notable exception in my view though is that there is no duty of procedural fairness owed in the context of actual legislative drafting and public policy decision-making. So ex if your treaty rights are threatened by a proposed law, your tribe isn't owed any duty...

32. to consult or any other aspect of procedural fairness because these decision-making processes are protected by parliamentary privilege & separation of powers prevents the courts from making them play nice (see Mikisew Cree First Nation v Canada here). Very annoying imo.

33. & ofc there are cases where it will be mysteriously decided that the duty of procedural fairness is not owed for,,, reasons. We call Canada (AG) v Inuit Tapirisat the "No Soup For You" case bc the court held no duty was owed & offered only a variety of fuzzy justifications.

*phew* a third of the way there. gonna take a little break to warm up my coffee, brb.

ok coffee is hot again, alors, allons-y!

34. So, where the duty of procedural fairness is owed, the content of the duty almost always at least includes notice and disclosure. There are some pieces of actual legislation in this area in my jurisdiction but frankly, they suck.

35. The Alberta "Administrative Procedures and Jurisdiction Act" provides a decent amount of guidance around the rights and practices constituting the content of the duty of procedural fairness... but it only applies to authorities whose enabling legislation binds them to it...

36. And there are at this time.... four such authorities. Just four. The Land Compensation Board, the Surface Rights Board, the Transportation Safety Board, and the Natural Resources Conservation Board. Outside of these venues the whole Act is virtually useless.

37. Our federal jurisdiction and every provincial jurisdiction in Canada each have Freedom of Information and Privacy Acts too. These should help you get disclosure from public bodies. But in the words of my professor "The Alberta FOIP Act reads like a piece of swiss cheese."

38. (it looks pretty tasy but it is full of holes)

39. So for the most part lawyers will have to argue from common law precedents in order to flesh out the scope of notice and disclosure requirements under the duty of procedural fairness.

40. Notice needs to be effective, which means it has to be comprehensible to the affected party (think about language, literacy), it has to give enough detail to communicate whats going on and it has to be given early enough to give a reasonable amount of time to respond to it.

41. Disclosure needs to convey the "case to meet", which means it has to give enough detail about the matters being considered by the decision-maker so that the affected person can meaningfully respond to all the relevant factors that will affect the outcome of the decision.

42. This can be fulfilled by an "incompressible minimum" (usually in the context of national security cases) or by full Stinchcombe disclosure (the kind of completeness constitutionally req'd for the Accused in a criminal case to respond to their "case to meet"); it's a spectrum.

43. The requirement for a decision-maker to provide reasons detailing their justification for their decision under the duty of procedural fairness is also related to the right to disclosure.

44. Providing reasons in and of itself reflects the procedural fairness of a decision (shows the decision was made as a result of legally justifiable analysis, not just the whims of the public offical.) But they also disclose the "case to meet" for decisions that can be appealed.

45. When decisions are judicially reviewable they'll be subject to a standard of review (correctness or reasonableness, I'll talk about that later). A judge will need to see their reasons to see if the decision-maker followed a line of reasoning that meets w/e standard applies.

46. Depending on the formality of the decision-making context, the duty of procedural fairness may also give rise to the right to an oral hearing, to counsel, to cross-examination, etc. The more the scenario looks like a trial, the more it will have to act like a trial, basically