CASUAL LEGAL: How Russian Espionage Changed Administrative Law

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How Russian Espionage Changed Administrative Law

By Bethany Schatz

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

The Municipal Government Act (“MGA”) creates various administrative bodies, including commissions, boards and tribunals, and grants them the authority to make decisions regarding certain issues. For example, assessment review boards are established by section 454 and are given the power to hear complaints regarding the assessment and taxation of property.

Decisions made by administrative bodies are subject to scrutiny by the courts. Courts have a supervisory role which gives them the authority to review administrative decisions. This process is known as judicial review.

When a decision is subject to judicial review, the first question that is asked is what standard the court will use to review that decision. The standard essentially determines how much or how little a court can interfere with the decision. Or, in other words, how much deference the court has to show the board or tribunal. The more deference a court has to show, the more likely a decision will be upheld. There are two possible standards in administrative law: reasonableness or correctness. Reasonableness is the more deferential of the two.

In a recent case involving Russian espionage and Canadian citizenship, the Supreme Court of Canada re-formulated the test that will be applied in determining what standard will apply. In short, the standard of reasonableness is presumed to apply, subject to a few specific categories of cases. Decisions by administrative bodies under the MGA will therefore largely be reviewed on a reasonableness basis, meaning that they are more likely to be upheld. The exception is where the MGA creates a statutory right of appeal; then the correctness standard will apply.

The Supreme Court also provided a thorough review of how the reasonableness standard should be applied. One overarching theme is the importance of providing reasons for your decision. Specifically, courts are looking for reasons that follow a logical chain of analysis and make sense in light of the factual and legal context of the case. Good reasons will demonstrate that the following factors have been considered: the governing statutory scheme, other applicable statutory or common law, principles of statutory interpretation, the evidence before the decision maker, any findings of fact, the submissions of the parties, and regard for the impact of the decision on the individual it applies to.

Now more than ever, boards and tribunals should be focused on providing clear and cogent reasons for their decisions.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-888-668-9198 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP.  For more information on the Casual Legal Service, please contact Will Burtenshaw, Director – Risk Management Services, at (780) 409-7450, or toll-free at 310-AUMA (2862) or via email at wburtenshaw [at] auma.ca (wburtenshaw[at]auma[dot]ca).  Any Regular or Associate member of the AUMA can access the Casual Legal Service. 

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.