Kinesiology 4459A/B Lecture Notes - Lecture 20: Rulemaking, Innocent Victim, Canlii
20 Feb 2017
School
Department
Course
Professor
Lecture 20
Administrative Law
Administrative law regulates the way in which power is exercised by public authorities. For example, it
regulates the exercise of power by:
• Ministers
• Public officials (bureaucrats)
• Agencies, boards, commissions, tribunals and other bodies appointed by the executive
The exercise of power by public authorities is also covered by the Canadian Charter of Rights and
Freedoms, which provides constitutional protection for a range of interests.
What sorts of decision making bodies might be relevant to the regulation of sports?
• Human rights commissions and tribunals
• Employment and labour relations tribunals
• Sports funding bodies
• Sport regulatory bodies — rulemaking and disciplinary
• Principles analogous to those developed in administrative law apply to regulate the way in which
power is exercised by private authorities.
The Duty of Fairness
1. The right to a hearing
• In general, a right to a hearing arises whenever a public authority makes a decision that affects a
person’s rights, privileges, or interests. The requirements of a hearing vary in different contexts,
and may be formal or relatively informal.
• Here is the significant point: a failure to provide a hearing will result in a decision being
overturned and the decision maker will have to make the decision all over again, after providing
the required hearing.
• In some instances, if timing does not permit sending the decision back to the original decision
maker, whoever is hearing the appeal may render a decision in its place.
The requirements of a hearing may include some or all of the following:
• Notice to a person that a decision may be made affecting their rights
• The right to make a written submission
• The right to an oral hearing
• The right to counsel, cross-examination rights, disclosure of evidence
• A written decision with reasons, etc.
The requirements of the duty of fairness are context-specific and take into account the circumstances of
the relevant process and the decision maker.
In general, the more someone has at stake, the more procedural protection they are entitled to. At the
same time, however, courts do not burden decision makers with procedures that they cannot reasonably
be expected to follow.
Consider these examples and what fairness principles might require:
find more resources at oneclass.com
find more resources at oneclass.com
• Disqualification of a horse following a race
• Suspension of an athlete for drug abuse
• Misconduct of an NHL player during a game
2. The right to an unbiased decision maker
• Decision makers are required to be impartial, but what constitutes bias is also context specific.
• Persons with financial interests, personal connections to parties, etc., are likely to be disqualified
as decision makers.
• Question is not whether a decision maker is actually biased, but whether there is a reasonable
apprehension of bias. Justice must be seen to be done.
Judicial review of the decisions of tribunals
• Typically, decisions of tribunals are final, and not subject to appeal. But Courts will review them
for legality and reasonableness – a deferential standard. This is part of Courts inherent
supervisory powers.
• Question is whether the tribunal made a decision that was open to it in all of the circumstances.
• Courts will interfere if:
• Tribunal didn’t have proper jurisdiction
• Errors in procedure
• Denial of natural justice
Courts may make orders on judicial review:
• Overturning decision
• Returning decision for reconsideration by decision maker
• Prohibiting proceedings or particular decisions
ii) Gretzky et al. v. Ontario Minor Hockey Association et al., 1975 CanLII 508 (ON SC)
issue - transfer rule
Facts:
• MTHL and OMHA refused transfer because OHA refused.
• Applied to the court for an interim injunction
Holding:
• Court refused the injunction
Reasons:
• If contract exists, it would be voidable because boys are minors
• Failure to exhaust all internal remedies
Post Script:
• Gretzky played Jr B one year, Jr A one year, WHA one year, and the rest is “legend”
• Brian Rorabeck???
Please read: MacDougall v. Ont. Fed. Of School Athletic Assns. (1987), 27 C.P.C. (2d) 326 (Ont. Dist.
Ct.) (I will post in resource section)
Plaintiff – 13-year-old who played basketball with hopes of getting basketball scholarship. Transferred to
a new school because they had a course in law and this is what he wanted to study in the future.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Administrative law regulates the way in which power is exercised by public authorities. For example, it regulates the exercise of power by: ministers, public officials (bureaucrats, agencies, boards, commissions, tribunals and other bodies appointed by the executive. The exercise of power by public authorities is also covered by the canadian charter of rights and. Freedoms, which provides constitutional protection for a range of interests. The duty of fairness: the right to a hearing. In general, a right to a hearing arises whenever a public authority makes a decision that affects a person"s rights, privileges, or interests. In some instances, if timing does not permit sending the decision back to the original decision maker, whoever is hearing the appeal may render a decision in its place. The requirements of the duty of fairness are context-specific and take into account the circumstances of the relevant process and the decision maker.
