Can we please share Admin Law Sample questions and answers here. I found some of thesae on the internet.

Please use your own judgement before using them No guarantees. Practice Exams Sossin Exam Question 1: Possible breaches of the DOF in Ministry & Board decisions; which are likely to succeed:

This question is like a memo canvass both sides, make evaluation about which is more credible/likely Technically, to answer this question, must do each step for the Minister and the Board This is the basic analysis framework for a DOF question
Is there a statutory right to a DOF? Specific Legislation:

Board Level (Board): Section 5 of statute says a reasonable opportunity to be heard must be provided to denied applicants, unless this would jeopardize a criminal investigation Ministerial Level (Minister): No SPPA:

Consider: Section 3(1) in the statute, they arent required to hold a hearing GET NOTES FROM DEAN Threshold Question: GET NOTES FROM DEAN Apply the factors from Baker:

Nature of the decision: Personal, not polycentric Appears to be final Quasi-judicial, in determining the rights of this particular individual; but could also been seen as regulatory, within a broader scheme of determining how goods are moved around the province He is an applicant who is seeking a renewal of his license We care about it being a renewal because of Webb he is not applying for a mere privilege (Webb); because he is renewing, he is entitled to more privileges (Webb) Statute shall be renewed Hutfield no reason to distinguish between something is already granted and something for which someone is applying, but????? Denial would be a slur on the applicants reputation (as in Hutfield) Counter to Hutfield doctor is a professional, applicant is a trucker; public interest may point the other way in this instance (toward public safety); whether the judge would use the same language about right to drive a truck as the right to practice; denial of this license is just denial to carry one type of substance, not a complete denial to drive (v. denial to practice is basically denial to make livelihood) Nature of the Statutory Scheme and the Terms of the Statute Decision is final and determinative at the Board; the Ministers decision is not final or determinative Importance of the Decision to the Individual Economic interests Financial security (cant make a living without this license) Part-time point in question was ambiguous could work against him, or could be used to argue that he can only work f/t with the additional license Legitimate Expectation Two sources of legitimate expectations promise and established practices Here, we get more from promise, which he received from the bureaucrat as long as he didnt get in an accident or get in trouble with the law, the license would be renewed

Legitimate expectation can only increase fairness owed (cannot guarantee an outcome) Choice of Procedures Not much in cases that makes this factor useful but, could sometimes be the case that the agency has tried to implement, in the statute, some specific thing to deal with issues Statute seems to grant/award a wide discretion around choice Minister: s.2(1) Minister or delegate may grant, renew, revoke licensees, etc. Renewal discretion is limited but, overall, there seems to be some discretion Degree of Fairness Owed to Alex (based on the Baker factors) could probably characterize it as more than minimal: Is an oral hearing required? Maybe not Not always required, just need a meaningful opportunity to express your case (Baker); at this stage, no issue of credibility (although one may arise if he is allowed to give evidence contradicting that of the Minister/OPP re: terrorism allegations, etc.); Singh although he got an oral hearing in the circumstances, court says not even a s.7 violation guarantees you an oral hearing = likely, Alex wont get an oral hearing COUNTER: In practice, procedures on top of what might be required by statue; Alex did get an oral hearing, although it was only 30 mins Are reasons required? Likely yes Via Rail is part of having a reasonable opportunity to present his case; needs to know why he was denied Is disclosure required? Board, under s. 5, must present him with a reasonable opportunity to be heard unless it would jeopardize a criminal investigation this would require disclosure so he can make a full answer and defence ( Singh) Should probably disclose the background check and/or Ministers Memo Napoli could also be useful here COUNTER: this involves sensitive, national security information; statute s. 1 talks about purpose as to protect health and safety, etc. Impartial and Independent Decision-Maker Regardless of what else Alex is entitled to at the Board, it definitely includes an impartial and independent decision-maker Impartiality (Bias)

Test for Bias (Justice & Liberty) reasonable apprehension of bias on the part of a reasonable person, informed,

Individual Bias

Attitudinal Bias of the Individual comments made by Board member re: terrorist buddies (Baker reliance on preformed opinions based on stereotypes, etc.) Whether decision-maker was opened to being convinced; approached hearing with open mind, etc. may want to make arguments here Since he wasnt granted reasons, the Board members thrown out at end of hearing could be taken as reasons for the decision Baker Membership of the trucker in the organization being equated with terrorism is a conclusion based on stereotype Baker Problem with parallel to Baker becomes counter on this point: Bias of decision-maker v. legislative purpose in this case, any security issue goes to not granting a license; Ministers direction that any ties to Middle East becomes grounds to flag the application

Institutional Bias

Would there be a reasonable apprehension of bias in a substantial number of cases? (Quebec Inc.) If Alex wanted to claim institutional bias wed want to know, beyond his particular panel, what is the constitution of the board as a whole Independence

Want to consider both individual & institutional General question: does the statutory scheme render the tribunal free from interference?

Biggest problem with this analysis: two levels of analysis must be performed (statutory v. actual operation) cases that assist with this analysis is CPP v. Matsqui (whether you have too look at the actual operation of the tribunal to determine independence) Does the statutory scheme render the tribunal free from interference? Valente Test: Is there security of tenure? No, they are appointed at pleasure Is there financial security? Only know its part-time; nothing else about pay in statute Administrative control? Requirement re: law degree and/or experience Looking to cases, particularly CPP v. Matsqui, Sopinka: that it is more important how a tribunal operates in practice; also learn that you dont need all three elements under the Valenti test to be independent, it is a contextual analysis (confirmed in Quebec Inc.); analysis: Is a fixed term here, but it is short (3 months) Paid on a per deim basis, so financial security depends on how many cases you are assigned to Considering administrative control, it seems questionable that you get no one with a law degree, but instead three people with Anti-Terrorism degrees (seems that someone in charge is rigging the panel) Would want to know what is the actual constitution of the Board Members to make this argument more persuasive Where the statutory scheme clearly authorizes a regime that would not constitute independence under the common-law, we say that it stands unless there is some constitutional challenge & where the statue is silent or ambiguous, we used the common-law to fill in the gaps (Ocean Port) Therefore, we have to figure out where the statute is ambiguous Tenure appointed at pleasure explicit in the statute; will be okay re: security of tenure Pay statute is ambiguous Administrative control statute is ambiguous, although you could make an argument that the training required fits here Summary would a reasonable person, looking at this as a whole, determine that the Board had independence? Right to Counsel Howard v. Stoney Mountain depends on seriousness of interests at stake (e.g. liberty?), complexity of proceedings, and the capacities of appellant Even in a case where a s.7 argument is advanced, someone may not have a right to counsel, therefore seems unlikely that Alex will be granted a right to counsel (Howard, G.(J.)) Reasons Arguable whether reasons would be required use Baker Traditionally, at common-law, reasons arent required, this is supplemented by Baker: Is there a statutory right to appeal? What is at stake for the individual? SPPA no general requirement for reasons unless requested Discussion

Threshold is now a one linerif this is the decision of a public decision-maker affecting the rights, privileges, etc. of an individual, then you just say the threshold is met and move on Threshold may not be met (and may need to go to Nicholson, etc.) if it is a Ministerial decision If its a statutory decision-maker, etc., then you note that there may be a question as to whether the DOF applies, and go through the test using Nicholson, etc. Question 2: Standard of Review for Ministerial & Board Decision:

Make a map for Standard of Review analysis Map

Alex files his application s. 2(1) renewal of Class B; Application under Class A Application goes to Minister (his delegate); Minister can grant, renew (subject to 2.3), modify, or revoke

Under renew, we had a failure to review, which was appealed s.3 on a question of law, within 30 days, to the Board Had a hearing s. 5

Analysis:
There are three possible standards, three and only three (Law Society v. Ryan)

Determine the standard of review using a P&F approach; applies to statutory decision-making as well (Dr. Q.) P&F approach is done using four factors (Pushpanathan):

Presence of absence of a privative clause or statutory right of appeal Board

Section indicates that the decision of the Board is final Could be interpreted as a privative clause, but is very different from the typical privative clause (a la OLRB) Therefore, it is a weak/partial privative clause Limited right of appeal on questions of law Minister

Complete right of appeal in the statute Expertise of the tribunal relative to the Court, with respect to the particular question under issue Board

Depends how you frame the question background/training may assist in making decisions about terrorist risk; would know substance that would be biohazardous threats and what licenses allow transportation of what, etc. ( Southam) PROBLEM: this is not an expertise related to the power the statute has given them are not there to look for terrorists (Counter: purpose of legislation & public safety); is some signal in the statute that lawyers are preferable; length of appointment negates from experience leading to expertise BIGGEST PROBLEM: They didnt know about the reasons for denying the license; only had memo that people with ties to middle east should be flagged; didnt have information needed to make an accurate assessment of whether or not he was a terrorist On the facts, it breaks down Purpose of the Legislation and the Provision in Particular Purpose is public safety orientated, but could also be construed as a regulatory statute In analysis, be specific about what provision you are referring to (will be different for Minister v. Board) Are they making a decision within the core purpose of the tribunal? ( CUPE) Focus specifically on issue of keeping Canadians safe, and perhaps not turning minds to other aims of legislation Purpose of Board is re: transportation of biohazards, and this determination is within their core competency Nature of the Problem Minister is making a determination under s. 2.1, limited by s.2.3 Board, under s.3, they are reviewing questions of law; Boards determination is just an appeal of the Ministers decision Minister application of fact to a question of mixed fact and law: is there a problem with his driving record or conduct that cause him to be a risk to health and safety? Presumably, his challenge is based on whether his conduct could include his membership to the organization Based on an analysis of the four factors, the suggested standard for each should be: Board:

Weak privative clause & limited right of appeal on questions of law; Expertise are looking at whether the Ministers assessment under 2(3) was correct (whether the conduct poses a risk to public safety); make argument about whether they have expertise

Purpose of the Legislation & Statute is it one of the core purposes of the Board? Look to s.1 of the Act for purpose is a regulatory scheme to determine who should be licensed, and to protect safety Nature of the Problem same as for Minister; whether membership in the organization poses a risk to the health and safety of Ontarians; is a mixed question

Minister:

No privative clause & right of appeal to Board less deference Expertise Ministers decision under 2(3) re: renewal; Minister has to determine whether membership in the organization is conduct which poses a risk to the safety of the public likely low expertise less deference Statute & Provision is it one of the core purposes of the Minister? Look to s.1 of the Act for purpose is a regulatory scheme to determine who should be licensed, and to protect safety this could go either way, depending on how you argue it could go either way Nature of the Problem whether membership in organization poses a risk to health & safety of Ontarians; is a mixed question doesnt really help us could go either way

Ryan not all factors have to point in one direction to get to correctness or patent unreasonableness but, in general, thats
what the trend has to be to get to one side or the other; if you have a real mix of factors, you will likely get to reasonableness Here standard is likely reasonableness for both the Minister and the Board Could do a critique of standard of review, a la Toronto v. CUPE but isnt necessarily required

Reasonableness Review on Refusal to Renew:

There is a discretion to not review under 2(1), subject to 2(3) must renew unless Therefore, must determine if Alexs membership in organization poses a risk to the health and safety of Ontarians Reasonableness Review:

Arent looking to see if they made the right decision, but if the support for the decision made is reasonable Ryan Is more than one possible interpretation CUPE Must consider whether the evidence relied on is sufficient to justify their conclusions Southam Classic formulation must stand up to a somewhat probing examination Southam Instruction from Ryan is stay close to the reasons (SCOTT: important because this gives you something to do, and points you somewhere) Minister seems that they just looked at ethnic background of the individual, and not background, etc.; basis of the conclusion was on his ethnicity; was likely an irrelevant consideration Chamberlain

Unreasonable: Chamberlain the considerations they took into account took them outside of their mandate; would have to look at the mandate of this board they can only protect safety within the transportation of biohazards; is up to OPP to stop terrorism, not the Ministry of Transport, etc. Reasonable: Southam, Ryan lots of language about judicial restraint; may not agree, but cant say there isnt some line of evidence that would lead from A to B, etc. Board: could pick apart Map, pick apart statute; on facts, there are differences re: information that was before the Minister v. before the Board

Ministers instruction to Board was that they should screen applications to see if they pose a risk to national security; in this case, was no probing examination of whether membership posed a risk; etc. Question 3: Could Board hear Charter arguments?

Looking at statute s. 5 explicit limit on reasonable opportunity to be heard; we can overcome these explicit limits through recourse to the Charter or the Bill of Rights (cant go to Bill of Rights because this is in Ontario)

Charter could go to s.7, but it would be a stretch no guarantee of economic rights; could try Wilson idea (s.7 doesnt include economic rights, unless its a right to practice), but it is a bit of a stretch Charter could also go to s. 11, but unlikely to succeed s.11 rights are limited to only penal consequences; basically are irrelevant in administrative law context, unless were talking about detention/prisoners Charter could go to s. 15, would be the most likely to be successful the equation of membership in this organization to an extra security risk is contrary to equality rights, based on ethnic origin Alexs reasonable right to be heard was limited based solely on his nationality and membership in this ethnic organization Question then becomes can Board hear the Charter argument? Go to Martin summary that deals with this issue: If a Board can deal with questions of law, presume that they can deal with Charter questions (Martin) can be rebutted Here, they have jurisdiction to determine questions of law Can the presumption be rebutted on these facts? If you can appeal only questions of law, then Board must be able to determine questions of law Nothing indicating that legislature didnt want them to determine questions of law Could Alex succeed in having some/all of the Biohazard Transportation Act being struck down? Need to discuss s.24 v. s. 52 have line of authority, and then Martin overruling Cooper IMPORTANT: Cooper said tribunals dont have authority to give remedies under s. 24 BUT that was reversed in Martin Tribunal can make the statute provisions inoperative for this case, but there is no stare decisis, so they cant strike it down permanently Wright Exam Question 1:

Statute doesnt provide for any fairness, so the SPPA doesnt apply must use the common law P has right to procedural fairness, because the decision was made by an administrative body (established by statute Homeopathy Regulation Act), and their decision affects her rights, interests [and] privileges Cardinal Counterargument (not necessary!): Webb she doesnt have a right to be a homeopath; but counter this with Huttfield courts will protect rights as well as interests Content of the Duty of Fairness (Baker): Nature of the Decision more administrative than judicial; she is an applicant (Webb, Huttfield) less fairness Statutory Scheme no right of appeal; decisions are final; serious decision, determines the rights of an individual more fairness Importance of the decision to the individual affected serious decisions, determines the rights of an individual BUT college would say that its only a right to work in this profession in Ontario, not being precluded from practicing elsewhere (Wilson) more fairness Legitimate Expectations was some representation given by the government, through the legislation, that if you meet the criteria, you will get a license (Huttfield) more fairness NOTE: Mount Sinai would be a more appropriate cite if a prior exercise of discretion gave rise to a legitimate expectation Where the statute sets out specific criteria for gaining a license, it sets out legitimate expectations that a particular analysis will be conducted doesnt give rise to right, but affects content of the duty Colleges Arguments within Huttfield limited number of people that can be admitted, she doesnt know who shes up against; legitimate expectations that criteria will be followed does not lead to a legitimate expectation of a substantive result; etc. Choice of Procedures deference to the College; must be able to decide on basis of written application, in accordance to own procedures, etc. less fairness Characterizing the Level of Fairness Due: likely, here it is more than minimal; question becomes whether she had a meaningful opportunity to present her case fully and fairly ( Baker) College: she was given a reasonable opportunity to address all the criteria they were considering; oral hearing and/or anything above a written application wasnt necessary; she chose the references; space on application to provide any other information she felt was relevant, demonstrate her adherence to principles of homeopathy, etc. Good argument that she was given an opportunity to present her case fully & fairly

Arguments about why she didnt get to present her case fully and fairly:

Staff studies (Napoli she should get a copy; Egglestone might impede but you need to balance different interests);

Independence and Impartiality of Decision-maker:

Bob

A&P descended into the arena; is an obvious advocate for the Ottawa College; prior statements giving reasonable
apprehension of bias Baker bias somewhere in the decision-making change biases the decision as a whole Wewaykum when you have a multi-member panel, the bias of one member taints the entire decision (even though the court carves out an exception for the SCC on this issue) Cayva

She has a pecuniary interest in this case the presence of an immediate possibility of gain, directly or indirectly, is sufficient to render someone unfit to make a decision Energy Probe

Energy Probe contingent expectation of a pecuniary gain is not enough; by analogy, a contingent expectation of a
pecuniary loss may not be enough Liberty Test should also be set out Independence

Performance bonuses indicate a lack of independence between the Board and the Minister Given that we dont have much information, could go with Sethi no right-minded person would suppose that they could please government by making a certain decision (??) Look to statute, how tribunal operates in practice, etc. would need more information On exam, may want to raise this issue, say that you would want more information, etc. and move on Reasons

Do reasons address criteria in statute? Here, they seem to Reasons make reference to information we dont have may lead you on to disclosure issues, etc. Question 2: Migrant Workers

Map:
CMEA make complaint to tribunal under s.16 of the AEPA; decision of the Tribunal is final and binding; option of JR to divisional and superior court Tribunal made two decisions:

Cheng was an employer, for the purposes of the Act; and Reasonable opportunity, given the harvest

Determining the Standard of Review:

May make some preliminary comments, and then go through factors: Privative Clause and Right of Appeal partial privative clause in s. 16; no statutory right of appeal Expertise relative is probably lower than a court for both questions: have low expertise on the first, pure question of law; on second question, probably have a lot of expertise re: harvest Purpose of Statute & Provision balance rights of workers with needs of farms probably indicates more deference Are these questions within the core of the tribunals expertise? Depends on how you characterize it: Tribunal is established under different piece of legislation, hears appeals on agriculture and food more broadly; argument that it isnt within the core competence isnt like CUPE, with a specific board designed to decide specific issues; decides all sorts of agricultural issues

Therefore, this dispute (re: labour) may not be within their core purposes Nature of the Problem first one is a question of law, second one is mixed fact & law Question of law = less deference Mixed = doesnt really help us May be two standards of review in this case (for each question) Reasonableness would likely be the appropriate standard here Argument against correctness polycentric nature of decision; great deal of expertise with respect to question 2, etc. Similar to CUPE because its about labour relations in CUPE, it didnt work because the decision the court upheld was, without the protections afforded in CUPE, the labourers rights would be illusory A similar thing could happen here, if we give a reasonableness standard on the second question otherwise, you take away all the power for employees over their working conditions because the harvest is done and they are gone, etc. Crisis in Standard of Review is not impossible for us to think about using Southam analysis re: judicial restraint, that there is some line of analysis between the conclusion and the reasons, etc. CUPE v. Toronto critique of the approach to Standard of Review Queen Street West Triangle Problem Part A: Three options to fight the Boards decision under the Ontario Municipal Board Act: Power to rehear or review application under s. 43 Cabinet petition s.95(1) Appeal to Divisional Court on a question of law (with leave) s.96(1) Part B: You are a Judge Appeal filed by the City of Toronto Planning Department from the decision of the Ontario Municipal Board (OMB) under s.96 of the Ontario Municipal Board Act. No jurisprudence need to establish the appropriate standard of review With reference to OMBA and Planning Act, draft portion of judgment dealing with standard of review

Map
Council passes plans and by-laws Developer requests amendments Public meetings are held Decision is made to deny or allow PA appeal under s.22(7) Bylaw appeal under s.34(11) OMB rehear under 43, petition under 95(1) OMB can allow or deny either City can then appeal OMB decision to Divisional Court; need a question of law under s.96(1)

Question of Law
In our exam, will likely be information in the question about what questions would be raised on appeal Actual finding of the decision under heading Non-Residential Land Use, is some issue about retaining live & work space Discussion of evidence of city land use planner; how they determined how they would allocate this non-residential use; called this the no net loss city policy Decided they dont want to lose any of this live & work space City planner later had to admit that there were places in the city where this no net loss policy hasnt been implemented Board found this to be a inconsistency that couldnt be resolved; etc. Applicants planner later argued the city couldnt try to protect employment uses without a valid policy objective Basically saying that no net loss wasnt an appropriate policy Board felt that the no net loss policy wasnt established well enough Result: said they could build their condo tower, but had to reserve the mainfloor, street level for commercial and other live & work uses Dispute is about whether or not the developer should be required to maintain some amount of live & work space, for this parcel of land in its redevelopment Want to just put up a condo tower; city and others are trying to maintain some of this space for other uses (e.g. artists) Question of law in this example is something about the city planners evidence, and about the evidence re: the no net loss policy

Boards conclusion: there was no basis for the no net loss policy Therefore, question of law: Is the Board entitled to reject city planning policy? NOTE: Developing the question of law is not vital to conducted a standard of review analysis, but makes it easier to think through it

Standard of Review Dr. Q. P&F approach applies equally to statutory appeals as to JRs Four Factor Analysis (Pushpanathan):
Privative Clause Board has exclusive jurisdiction to decide all questions of law and fact; s.96(4) privative clause strong/full privative clause; statutory right of appeal included, with leave, on questions of law Statutory Right of Appeal takes away a bit of deference (but this right is limited); rest indicates high level of deference Expertise expertise of board members, relative to courts, with respect to the question at issue Can look at expertise vis a vis planning issues; or expertise vis a vis questions of law HERE, would argue the Board has no greater expertise for answering this question than the courts; would want to talk about training, frequency of decisions, etc. IF we were on a JR application, then wed be strictly talking about planning policy, and wed speak about Boards expertise relative to courts with respect to planning issues only Purpose of the Legislation and the Provision look at purposes of the Planning Act and the OMBA OMBA purposes balancing, polycentric stuff, etc. Polycentric, multiple interests, core of jurisdiction (CUPE) more deference Nature of the Problem low deference if question of law; IF were JRing on finding of no basis for policy, then would get more deference Southam even when its a statutory appeal on a question of law, we could get to reasonableness (even when dealing with an expert tribunal) IF this was a JR, on a question, you might get to patent unreasonableness

Lik