IMPR 101-4
IMPR 101-4
12 null terms
- Codified
- Formalized and clarified in writing in the form of binding legislation.
- Customary International Law
- International legal customs and practices that take the force of law over time.
- Policy
- Non-binding guidelines that are created by agencies to support the administration of statutes and regulations, and that reflect the government and agency's agenda.
- Precedent
- A court ruling on a point of law that is binding on lower courts.
- Reasonableness
- Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339
https://www.canlii.org/en/ca/scc/doc/2009/2009scc12/2009scc12.html?autocompleteStr=Khosa&autocompletePos=1
Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s Try Again!” (2008)
IRPA s.67
Federal Courts Act s.18
Relevant factors in Reasonableness:
(1) the presence of a privative clause
(2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence judicial review
(3) the nature of the question at issue before the IAD — Parliament has provided in s. 67(1)(c) a power to grant exceptional relief and this provision calls for a fact dependent and policy driven assessment by the IAD itself
(4) the expertise of the IAD dealing with immigration policy. These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case. [53?57]
Where the reasonableness standard applies, it requires deference. Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes.
- Regulations
- Detailed rules created pursuant to a statute by the Governor in Council that fill in practical details regarding the statute's administration and enforcement.
Example: IRPR
IRPA s.5(4): (4) The Governor in Council may make the regulation at any time after the proposed regulation has been laid before each House of Parliament under subsection (2).
- Residual Power
- Power that is not otherwise delegated elsewhere.
ie: the Federal Government has residual power to legislate in all subject areas that are not specifically assigned to the provinces.
- Rules
- A category of regulation that has the purpose of establishing practices and procedures for the presentation of cases.
- Standard of Review
- Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339:
https://www.canlii.org/en/ca/scc/doc/2009/2009scc12/2009scc12.html?autocompleteStr=Khosa&autocompletePos=1
Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s Try Again!” (2008)
Federal Courts Act s.18
IRPA s.67
A legislature has the power to specify a standard of review if it manifests a clear intention to do so. However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters.
Dunsmuir principles to determine the appropriate approach to judicial review: Reasonableness and Correctness.
- Stare Decisis
- Latin: "to stand by things decided" or "let the decision stand"
The principle by which decisions of a higher court are binding on and must be followed by lower courts in the same judicial hierarchy. A rule of binding precedent elevating judicial decisions to a source of law
- Statutes
- Laws passed by Parliament or a provincial legislature. Also called and ACT. Can often specifically provide for the authority to make regulations or delegate this power. To be distinguished from "subordinate legislation".
example: IRPA
- Ultra Vires
- Latin: "Beyond the powers"
Opposite: Intra Vires: within lawful authority.
Outside the scope of lawful authority. A finding by a court that a statute or public decision is beyond the powers conferred by the Constitution of Canada on the body purporting to make it. The consequence of a finding of ultra vires is invalidity. Regulations too may be ultra vires the statute they are made under.