Browsing by Author "Campbell, Carlee"
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- ItemOpen AccessKey Concepts: Administrative Law from A to Z(Legal Resource Centre of Alberta Ltd. (LRC), 2007) Bowal, Peter; Campbell, CarleeMany administrative decisions call for meticulous factual determinations. The interests at stake may be serious. For example, whether one obtains immigration status to remain and work in Canada, whether one is granted parole from prison, whether a new television station secures a broadcasting licence, whether a licensed restaurant loses its liquor permit, whether a business person is barred for life from trading in shares on the stock exchange and from holding an office or directorship in any corporation, whether one can build a planned building on one's property, whether a physician loses privileges to work in a hospital - these are critical decisions which are likely to influence one's ability to earn a living or deal with one's private property. Quasi-judicial powers are discretionary, almost judicial, in nature. Since they are exercised by administrators, not courtroom judges, they are called "quasi-judicial". The quasi-judicial characterization means the administrative process in which it occurs approximates the formal procedures of courtroom litigation. In other words, if the stakes are higher, the procedural safeguards are more rigorous. Most decisions of civil servants involve no dispute or consideration "on the merits". The renewal of driving, pet and other licences, the admittance of a Canadian citizen back into the country, the registration of interests in a Land Titles Office, the incorporation of a company, the enrollment of a child into a public school and the payment of a fine in traffic court are examples of routine administrative actions. They leave little room for decision-maker discretion or political interference. Once specified determinants are satisfied, for example, for the issuance or renewal of a passport or the application for social services benefits, the government action is routine and virtually certain. Procedural protections for these merely administrative acts are minimal. Otherwise formalities and appeals would paralyze government administration. Only procedural fairness is required, loosely meaning the administrator has to follow the rules, demonstrate honesty, and avoid insidious discrimination and malice toward the person. Some believe that natural justice and procedural fairness are merging into a concept known today as "the duty to be fair." Review of an official's or board's decision by a court. The law courts enjoy the inherent power to review the legality of administrative actions. That is because courts exist to interpret legislation, including the delegation of legislative power to administrators. They have also long used the prerogative remedies to exercise supervisory jurisdiction over lower courts and other tribunals. The applicant usually asks for one of the Latin "prerogative writs" described in the box below (because they were traditionally a form of royal prerogative). They were used to control the servants of the Crown. All these remedies are within the discretion of the reviewing judge.
- ItemOpen AccessThe Whistleblower Defence to Employment Dismissal(Legal Resource Centre of Alberta Ltd. (LRC), 2007) Bowal, Peter; Brierton, Thomas D.; Campbell, CarleeA half century ago, an English jurist described the employee's legal duty of loyalty to the employer in the following terms: "(an employee) is expected to give, and with very few exceptions does give in full measure the qualities of loyalty and discretion. He is not to obtrude his opinion unless it is invited, but when it is needed he must give it with complete honesty and candour. If it is not accepted, and a policy is adopted contrary to his advice, he must and invariably does, do his best to carry it into effect, however much he may privately dislike it. If it miscarries, he must resist the human temptation to say, "I told you so;" it is still his duty, which again he invariably performs to save his (employer) from disaster, even if he thinks that disaster is deserved." In Fraser v. Public Service Staff Relations Board, the Supreme Court of Canada said "federal public servants should be loyal to their employer" except that where health, security, or life are endangered, criticism may be "actively and publicly expressed," although not "sustained and highly visible" against the government. Building upon Fraser and Haydon v. Canada, arbitrators have crafted nine factors to consider in cases where public criticism by an employee was disciplined by the employer. "Petty dissidents" and those who criticize without "substantial concern for others" will suffer less protection from employer discipline. The threshold of reportable wrongdoing is a major practical issue which may hinder the development of the law: what to do about mere troublemakers? The less serious the wrong, the less compelling and justifiable will be the disclosure. In legislation protecting whistleblowers, the wrongdoing that gives rise to protection from retaliation is specifically defined.