Origins of Administrative Law

Administrative Law
May 20, 2014
Ian Greene
Origins of Study of Administrative Law in Canada
• Principles of administrative law develop in every country as the
“administrative state” expands. Canada’s experience provides one
• Administrators and judges in each state tend to look at experience in other
states and adopt “best practices.” Canada and Palestine have something
in common because of influence of British and French legal systems in
both countries.
• Administrative Law recognized as a field of law separate from
constitutional law in UK in late 1950s; in Canada, 1960s and 1970s.
• Delay in recognition partly because of legacy of A.V. Dicey (Introduction to
the Law of the Constitution, 1885):
– Described the unwritten constitution of the UK, especially constitutional
conventions such as responsible government
– Human rights protected by judges applying the rule of law, and the doctrines
of interpretation, correctly; no need to a written Bill of Rights
– In the English common law system, there is no need for separate
administrative law courts; superior court judges supervise the whole
administrative law process so that there is a uniform application of the law
The roots of administrative law
• “administrative law concerns the ‘supervision’ …
by courts of decision making made pursuant to
statute or [executive] prerogative. Administrative
boards and tribunals … and ministers and
departmental officials, have no inherent power to
make decisions that affect people’s lives but for
the statute (or [executive] prerogative) that
empowers them to do so. Thus the role of the
court … is to make sure … that decision-makers
do not step outside the boundaries of what they
are legally empowered to do.” (Sossin)
• This supervision by courts is referred to as
“judicial review.”
A change in perspective
• Huge increase in federal, provincial and municipal boards and tribunals
beginning in early 1900s in Canada led to development of administrative
law principles by courts
• From 1940s to 1970s, appointments to administrative tribunals and
independent agencies became increasing expert and professional.
Superior court decisions overturning administrative rulings were
sometimes based on lack of expertise.
• Governments increasing inserted “privative clauses” into enabling
legislation for tribunals and agencies to limit judicial review.
• Superior court judges resented privative clauses and found ways to
disregard them.
• Young law professors were critical of the formalistic approach to
administrative law, and wrote journal articles advocating acceptance of
the administrative state by the legal profession. Deference to decisions of
administrative tribunals with expert members was advocated except for
– A clear violation of the tribinal’s legal powers
– An unconstitutional decision
– Decisions that are “patently unreasonable.”
The power of courts to review
administrative decision making
• 1. Original jurisdiction: a citizen may ask a court for relief
on the grounds that administrative decision-makers have
violated a private legal right related to a legal contract, or
tort (wrongful private act that results in injury to person,
property or reputation for which the injured party can seek
• 2. If there is a statutory right of appeal. *Important – there
is no right of appeal unless it is granted by a statute. For
certainty that there is no appeal, legislation may include a
“privative clause.”
• 3. Court’s inherent judicial review jurisdiction. Superior
courts in the UK had the inherent jurisdiction to judicially
review administrative decisions in 1867. Canadian superior
courts inherited this jurisdiction.
Canadian Court Structure
Supreme Court of Canada
9 judges
____|___ ____|____
federal |
| |
| federal
appointments | Tax | | Federal |
| 10 provincial & 3 territorial | appointments,
& admin. | Court | | Court
courts of appeal
| provincial
| 27 js | | 47 js
128 judges
| administration
|______| |________|
|_______________________ |
_____________ |______
appointments | provincial superior
| trial courts
administration | 829 judges
|__________________ |
___________ |__________
(All counts as of 2001)
provincial | pure provincial and
appointments | territorial courts
& admin. |
984 judges
federal appointments
and administration
Prerogative Writs
• The superior courts, or central royal courts, were created by William the
Conqueror and his heirs after 1066. A nation-wide system of law was
created to replace local laws with regard to the most important criminal
and commercial issues. Disputes were settled under these new laws first
by the king’s court, then by separate specialized courts (eg. King’s bench
for serious criminal matters, Court of Common Pleas for private law
matters). These royal courts inherited the King’s absolute power –
inherent jurisdiction.
• As the English legal system developed, in the 15th and 16th centuries they
devised “prerogative writs” to provide remedies when it was determined
there had been a breach of the common law:
Certiorari (quash or set aside a lower court decision, i.e. appeal)
Prohibition (to prohibit a public official from doing something illegal)
Mandamus (order a public official to perform his duty)
Habeas corpus (order the release of someone unlawfully confined)
• Canadian superior courts inherited the power to issue prerogative writs,
and used this power to “correct” decisions of public servants or
administrative tribunals.
Advances in the 1970s
• McRuer Commission on Human Rights (1968): huge impact
– human rights commissions, provincial courts, and the
Administrative Procedures Acts in 1970s. Ontario’s Judicial
Review Procedure Act (1971) simplified judicial review,
replacing the use of prerogative writs in most cases by
statutory procedures for judicial review.
• Because of the greater ease in requesting judicial review,
changes to administrative law court structures:
– Federal Court established in 1970 to handle federal
administrative law appeals (taking jurisdiction from provincial
superior courts to another superior court)
– Ontario: The Division Court established to hear provincial
administrative law appeals (panels of 3 judges selected from the
Ontario Superior Court by the Chief Justice of the Superior
Core functions of judicial review
• Procedural fairness
– Should a superior court review an administrative
decision? If yes, did the administrator apply
proper procedures?
– Substantive review: did the administrator make
an error so serious that the court should change
the decision?
– Remedies: if the administrator erred, should the
court substitute its own judgment, or send the
issue back to the tribunal for re-consideration?
Natural Justice & Fairness
Natural Justice
– Nemo judex in sua
causa (impartiality)
– Audi alteram partem
(hear both sides)
Functions of Admin.
Judicial or quasi-jud.
Judicial review
– Jurisdictional
– Abuse of power
– Natural justice
• Jud or quasi-judicial
– Doctrine of fairness
– Those aspects of natural
justice that can logically
be expected from a
legislative, administrative
or executive decisionmaking process
Procedural Fairness
What procedures are required in a particular situation?
-notice that a decision will be made?
-has there been proper disclosure
-adequate opportunity to make views known or
-is a full hearing required?
-should there be an opportunity to give evidence and
-should there be a right to counsel?
-have oral or written reasons been given for the decision?
What is critical is the enabling legislation. All administrators
should study their enabling legislation closely.
Substantive Review
• If a court decides that the threshold of procedural fairness
has been crossed so that judicial review is necessary, there
are 2 standards of review that could be used:
– Correctness – did the administrator make a decision that the
court would have made?
– Reasonableness: the decision does not need to be “correct,”
but within a range of reasonable alternatives. It cannot be
“patently unreasonable.”
• In determining which, the court looks at
Whether there is a privative clause
Purpose of the tribunal in the legislation
The nature of the question at issue
The expertise of the tribunal or administrator
Baker v. Canada (1999)
Mrs. Baker (from West Indies) had been in Canada illegally for a number of years
She had several children while in Canada
She was ordered deported, and a Canada Immigration official had denied her
permission to remain in Canada on Humanitarian & Compassionate grounds.
The decision was appealed all the way to the Supreme Court of Canada
The Immigration official had written brief notes that indicated bias
The official had not taken into account the impact of deportation on Mrs. Baker’s
Canada is a signatory the Convention on the Rights of the Child
Remedy: the Supreme Court quashed the decision, and ordered a different official
to consider the H & C application without bias, and taking into account the
Convention on the Rights of the Child
The new official who reviewed the application allowed Mrs. Baker to remain in
The Canada Immigration Commission then contracted with the York Centre for
Practical Ethics to organize a conference on ethical decision-making for its officers,
and then a series of workshops on ethical case management for several years.
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