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Administrative Law involves the supervision by the Superior Court over inferior tribunals such as Provincial Courts, boards, commissions and public officers. The Alberta Rules of Court provide that on an application for judicial review the Court of Queen's Bench may grant any relief the applicant would be entitled to in proceedings for any one or more of the following remedies:
- an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; or
- declaratory orders and injunctions.
Each of these remedies is designed to overcome the failure of a public servant or an inferior tribunal to properly carry out its function as set out by legislation.
The Court will grant an order in the nature of mandamus against a public official or body who refuses to carry out his or her duties. An example is a development officer who, notwithstanding that an application for a development permit meets all the criteria of a land use bylaw, refuses to issue a development permit. The Courts, on a proper application, would order the public official to do his duty. Failure to comply with the Court order, of course, is civil contempt. The Courts have held that to obtain a mandamus three conditions must be fulfilled.
- There must be an imperative duty on the official or body;
- There must be refusal or negligence to carry out the duty; and
- There must be no other recourse.
It is important to note that mandamus will not lie if the public official or body has a discretion in the exercise of the duty. However, it will if the public official refuses to exercise this discretion and make a decision to the extent the Court can order the public official to make a decision. The Court will not normally direct what the decision should be. Although in a recent decision, the court did order the City of Calgary City Council to issue a development permit because it had not complied with a previous order of mandamus to properly consider the matter on planning grounds. In this instance the Court held that the City Council had committed "quasi-judicial mischief" by not complying with the earlier order.
When dealing with the exercise of discretion, the Courts have stated the principal that if the public official or body tribunal has: a) exercised the discretion entrusted to it in good faith; b) has not been influenced by extraneous or irrelevant considerations, and c) has not acted arbitrarily or illegally, mandamus will not lie to compel it to reconsider or reverse its decision.
Therefore, even though a discretion may be given to a public official, the Court will compel the public official to act judicially. The Court will not consider that the discretion has been properly exercised if the reasons given for the decision are negatory or illusionary. The Courts have further held that public official who have taken into account matters which the Court consider not to be proper for the guidance of their discretion have not exercised their discretion. The law virtually requires the public official to exercise his conscience duly informed upon the subject. The decision must be made only after an impartially and effectually inquiry, examination and deliberation. If the Court has reason to think that anything is defectively done in this respect, it will impose its authority of admonition.
An Order of Prohibition is directed toward an inferior tribunal forbidding it from hearing or dealing with a matter. For example, a Judge of the Provincial Court does not have jurisdiction to hear trials of an accused charged with murder. Should a Provincial Court Judge decide to hold such a trial, the Court of Queen's Bench would issue an Order of Prohibition directed at the Provincial Court Judge banning the Judge from proceeding with the trial. Other instances which an Order for Prohibition would be granted is when a board or commission attempts to hold a hearing on a matter in which it has no jurisdiction or where they may have lost jurisdiction. A tribunal will lose jurisdiction if it commits an error of law such as permitting a hearing to proceed even though the Notice of Appeal was filed outside the statutory period allowed. On an Application for an Order of Prohibition, the only question before the Court is the matter of the jurisdiction of the inferior tribunal to deal with the matter. Whether the decision of the lower court or tribunal was right or wrong according to the law is not revealable. Thus, an Application for Prohibition is not an appeal and a finding on a question of fact cannot be reviewed by the Superior Court.
An application for an Order for Certiorari is made after a tribunal has made a decision. The Order for Certiorari commands the proceedings to be removed from an inferior tribunal to a Superior Court for review. The basic grounds for an Order for Certiorari is a denial of natural justice. This can arise from the failure to permit a party before a quasi-judicial tribunal to present evidence, to cross examine on evidence or where there is a clear case of bias. The error must appear on the face of the record which has been forwarded to the Superior Court. In addition, the Courts have also permitted additional affidavit evidence to show the failure to adhere to the rules of natural justice. It is important to note, however, that the deponent must swear to matters within his or her knowledge and affidavits on information and belief would not be admissible.
An Order in the nature of quo warranto is granted against a person who claims or usurps any office, franchise or liberty. The application is to determine by what right the official is exercising authority. The application may be made against a Municipality which attempts to exercise an authority it does not have under the Municipal Government Act. This extraordinary remedy is very seldom used.
Habeas corpus has been considered the most celebrated extraordinary remedy in English law, available to prevent the violation of personal liberty. This Order is directed to any person who detains another in custody. The Order commands the person to produce the body and justify the reason for the detention. Habeas corpus is normally sought where the validity of a warrant of committal is challenged or a person is being unlawfully detained. It has also been used by persons confined to mental hospitals who challenge the authority of their confinement.
One of the more common remedies is the declaratory order. This order is sought to have the Court examine the law and declare a parties rights. This can be applied to any statute, bylaw, regulation or even a private contract. For example, it can be tied in with an Application for Mandamus to show that the applicant has a legal right to have a permit issued and a Mandamus directing the public official to so issue the permit.
The last judicial remedy is the injunction. An injunction is an order issued by the Court directing that a party cease and desist from performing some action. It is normally a status quo order in that it is often sought prior to a trial of an action to maintain the status quo of the parties. However, it is also granted as a final order to prevent a person from continuing the breach of the law. Municipalities seek injunctions against those who carry out development without the proper permits and are also prevalent in labour disputes enjoining picketers.
The foregoing has been a very brief overview of the various remedies available from the Court in matters involving public officials, boards and commissions. Whether or not such a remedy is available for any particular case, must be examined in the light of the legislation involved.