Canadian administrative law
Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies in Canada. That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers (ADMs) such as a board, tribunal, commission, agency or Crown minister, when he or she exercises ministerial discretion.
The body of law is concerned primarily with issues of substantive review (the determination and application of a standard of review) and with issues of procedural fairness (the enforcement of participatory rights). Administrative law concerns the statutes and rules of government operations. Courts ensure that ADMs observe the limits on the authority. Also, declaration and equitable injunction remedies exist.
Sources of law
The powers of an ADM are primarily created by statute, which is known as the "enabling statute". These powers are limited by the legislative authority of the enabling government provided under section 91 or 92 of the Constitution Act, 1867. Superior Courts (known as Section 96 Courts) have an inherent power at common law to review any decision of an ADM. A judicial review allows for the court to consider the entire decision-making process, including the process, the findings of fact and of law. The power of judicial review is found either in the enabling statute or by virtue of the common law. The common law powers are derived from the four original writs of certiorari, prohibition, mandamus and habeas corpus.
Courts may also review a decision through a statutory appeal when the review power is explicitly granted within the enabling statute that created the administrative body. Appeals are typically reviews for errors of law.
These powers are also frequently limited by privative clauses or finality clauses within the enabling statute. A privative clause will declare the ADMs decision is "final and conclusive" and/or that the ADM has "exclusive jurisdiction" over the matter, effectively removing any power of review. As established in Crevier v Quebec (AG),  2 SCR 220, the Constitution requires that the courts be able to supervise errors of ADMs and so the legislature cannot completely oust them from that power, nor can an ADM completely replace a Superior Court.
The courts' power of substantive review allows it to consider the content of an ADM's decision and decide whether it was sufficiently incorrect to warrant sending it back for reconsideration. Where a court has the power of substantive review it must undertake the review using a standard of review which dictates the amount of deference that the court should give to the ADM. The decision and the evidence are reviewed based on the appropriate standard of review for the circumstances.
Determining the standard of review is a particularly contextual process and can vary based on the type of ADM or even the specific matter at issue. The modern method to determine the standard of review used to be known as the "pragmatic and functional approach" and is now known simply as the "standard of review analysis". Its purpose is to determine the amount of review that the legislature intended.
The first step, as set out in Dunsmuir v. New Brunswick, is determining if the standard of review has already been decided for cases of this type.
If not, the determination examines presumptions introduced by the SCC in Dunsmuir:
- Is the ADM interpreting its home statute or a statute it is deemed to have special expertise in? If so, there is a strong presumption of deference to the ADM. This has become presumptively operative in the cases that followed Dunsmuir.
- Is the ADM interpreting an element of the common law it can be presumed to have special expertise in? If so, there is a strong presumption of deference to the ADM.
- A presumption of little deference ( a correctness standard) applies if:
- the issue is one of Constitutional matters;
- the issue involves a true question of jurisdiction;
- the issue involves a question of competing jurisdictions between ADMs; or
- the issue is one of central importance to the legal system.
After considering these presumptions, courts should consider the four contextual factors first established in Pushpanathan:
- the presence or absence of a privative clause or statutory right of appeal;
- the expertise of the tribunal relative to that of the reviewing court on the issue in question;
- the purposes of the legislation and the provision in particular; and
- the nature of the question - law, fact or mixed law and fact.
The analysis is highly contextual. None of the factors are determinative and will vary in significance based on the circumstances. Where deference was intended the courts will review the ADM on the basis of reasonableness. Where little or no deference is intended the ADM will be reviewed on a standard of correctness.
Standards of review
There are two standards of review available to courts, following the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick: reasonableness and correctness. A third standard of review, patent unreasonableness, was abolished in Dunsmuir.
Reasonableness is the more deferential standard that a court can give to an ADM. Where the decision is a matter of law, a mix of fact and law or a discretionary decision it is said that the decision is unreasonable where the decision is "not supported by any reasons that can stand up to a somewhat probing examination". In other words, it is unreasonable where "there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived."
Correctness is the less deferential standard that a court can give to an ADM. The court will give no deference at all and will judge the decision on the basis of whether it is correct in law. A court may substitute its own opinion for that of the ADM.
Certain matters have been held by the court to always warrant a correctness standard: questions of constitutional law and division of powers, a "true question of jurisdiction" (in determining whether an administrative decision-maker has properly exercised its authority granted under a statute), questions of general law that are both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise, and questions regarding jurisdictional lines between two or more competing specialized tribunals.
Patent unreasonableness was the highest level of deference that the court could give to an ADM, prior to the Supreme Court's decision in Dunsmuir v New Brunswick (2008). Under this standard of review, a court would only substitute its own reasoning for the lower decision-maker's if it was so egregious as to be patently unreasonable. This standard was found to be dissatisfactory as it allowed certain decisions which were unreasonable but not patently unreasonable to be upheld, giving rise to situations where certain people were told to accept an irrational decision of an administrative body.
The Supreme Court abolished the patent unreasonableness standard in favour of retaining the two standards of correctness and reasonableness. This does not necessarily mean that cases decided on the "patently unreasonable" standard cease to be of any use. Rather, in practice they are often referred to as examples falling below the threshold of "reasonableness", and remain helpful in that regard.
There is, however, one exception to the abolition of the patently unreasonable standard. British Columbia has codified the patently unreasonable standard in the Administrative Tribunals Act. Because statute is held to be superior to the common law, this legislation preserves the patently unreasonable standard in British Columbia despite the Supreme Court ruling in Dunsmuir that the standard no longer exists.
Procedural fairness concerns the entitlement of rights during the deliberation of a case before an ADM. These rights flow from two principles of natural justice, the right to be heard (audi alteram partem) and right to be judged impartially (nemo judex in sua causa). These rights can be conveyed by the Canadian Charter, "umbrella" legislation, the ADM's constituting legislation, and the common law.
Legitimate expectation of procedural fairness applies:
"When a public authority had promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty." In this way the courts have found procedural fairness through a promise by an ADM. There are requirements for what constitutes a legitimate expectation.
- A public authority makes a promise,
- That promise is to follow a certain procedure,
- In respect to an interested person, and
- They relied and acted upon that promise
According to Canadian Union of Public Employees v Ontario (Minister of Labour), if the promise is clear, unambiguous and unqualified representation as to a procedure, then it creates a legitimate expectation. This applies also to an established practice or conduct of a given ADM.
Legitimate expectation will not apply when dealing with a legislative decision, promises that conflict with statutory duties, and substantive promises.
Duty of fairness
The common law imposes a minimum duty of fairness in certain administrative proceedings. The duty can only be invoked where the circumstances satisfy a threshold based on three factors set out by the Supreme Court in Knight v Indian Head School Division No 19.
- First, the nature of the decision must be sufficiently administrative or quasi-judicial. Decisions that are of a "legislative or general nature" which are based on broad policy issues rather than points of law are not likely to warrant a duty of fairness. Furthermore, the decisions must be final in nature, not preliminary or interlocutory.
- Second, the relationship between the (public) body and the individual must be based on an exercise of power pursuant to a statute (or prerogative power).
- Third, the decision must affect the claimant's rights, privileges or interests.
Where the circumstances satisfy the threshold test to invoke a duty of fairness a claimant will be entitled to certain participatory rights including pre-hearing rights, such as rights related notice, disclosure, discovery, and delay, as well as hearing rights, such as rights related to the form of hearing, counsel, examinations, and reasons for judgment.
Content of Duty of Fairness: Baker Test
Baker v Canada (Minister of Citizenship and Immigration) clarified administrative law in Canada in relation to both substantive matters (discretionary decision making) and procedural matters (procedural fairness).
The content of the duty of fairness depends on the type of right and the circumstances of the case. There are five factors that affect the content of this duty:
- The nature of the decision. It asks whether the decision is more for the purpose of resolving dispute, protecting individual rights or some other judicial purpose rather than a decision that balances many interests and primarily considers policy.
- The statutory scheme under which the decision is made. This primarily focuses on whether the decision is final and conclusive or if it is preliminary or if there is a right of appeal.
- The importance of the interest at stake in the decision relative to other interests.
- The legitimate expectations of the parties based on whether there were any representations by word or conduct that lead the parties to believe there was some type of procedural protection.
- The procedural choices available to the ADM. The ADM must be accorded some deference to its practices and policies necessary to accomplish its mandate.
With respect to discretion, historically, the standard of review for discretionary decisions applied by the courts was that of correctness. However, this changed in Baker where the Supreme Court of Canada emphasized the awkward line between questions of law and discretion. The court recognized that the 'pragmatic and functional' approach, as outlined in Pushpanathan, should be applied when looking at issues of discretion. In addition, courts are able to apply a standard of reasonableness to discretionary decision making.
Bias and independence
Administrative tribunals must be free from an appearance of bias - that is, a reasonable person must conclude that an administrative decision-maker is sufficiently free of factors that could interfere with his or her ability to make impartial judgments (commonly known as the "reasonable apprehension of bias" test) This is derived from the natural justice principle of nemo judex in sua causa, or the right to be judged impartially.
Independence is one important indicator of whether there is an appearance of bias in an administrative body. Although administrative independence is not required to be as strict as judicial independence, there are still certain minimum requirements such as security of tenure and independent administrative control. However, administrative independence is not guaranteed under the constitution, and can be ousted by statutory language.
Once a court has determined that there has been a reasonable apprehension of bias, the decision in question must be void ab initio, as there is no remedy for the damage created by the apprehension of bias.
- David Mullan in "Administrative Law" (Irwin Law:Toronto, 2000) defines it as "the body of law that establishes or describes the legal parameters of power that exist by virtue of Statute or residual Royal prerogative." (p.3)
- Fluker, Shaun (July 23, 2018). "The Great Divide on Standard of Review in Canadian Administrative Law". ABlawg.ca.
The concept of an “administrative decision” encompasses a wide spectrum ranging from the exercise of Ministerial discretion to an adjudication of legal rights by a statutory tribunal to recommendations made by a board of inquiry.
- Crevier v Quebec (AG),  2 SCR 220
- Many provinces such as British Columbia, Ontario, and Prince Edward Island, as well as the federal government, have codified the common law power. All federal ADMs are reviewable under un the Federal Court Act RSC 1985, C. F-7
- Union des Employes de Service, Local 298 v Bibeault,  2 SCR 1048
- Dunsmuir v New Brunswick, 2008 SCC 9,  1 SCR 190
- Pushpanathan v Canada (Minister of Citizenship and Immigration),  1 SCR 982 at para 26.
- Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19,  1 SCR 226 at para 21.
- Canada (Director of Investigation and Research) v Southam Inc,  1 SCR 748
- Law Society of New Brunswick v Ryan, 2003 SCC 20
- Westcoast Energy Inc v Canada (National Energy Board),  1 SCR 322
- Crevier v Quebec (AG), supra.
- United Taxi Drivers' Fellowship of Southern Alberta v Calgary (City of),  1 SCR 485
- Toronto (City of) v Canadian Union of Public Employees, Local 79,  3 SCR 77, 2003 SCC 63 at para 62 per LeBel J
- Regina Police Association v Regina (City of) Police Commissioners,  1 SCR 360
- Dunsmuir, supra.
- Dunsmuir, supra at para 42.
- See: Statutory Powers Procedure Act, RSO 1990, c s 22; Administrative Procedures Act, RSA 2000, c A-3; Administrative justice, An Act respecting, RSQ c J-3.
- Old St Boniface Residents Association Inc v Winnipeg (City of),  3 SCR 1170
- Old St Boniface Residents Association Inc v Winnipeg (City of), supra.
- Gaw v Commissioner of Corrections (1986), 2 FTR 122
- Canadian Union of Public Employees v Ontario (Minister of Labour), 2003 SCC 29,  1 SCR 539
- Nicholson v Haldimand-Norfolk Reg Police Commrs,  1 SCR 311
- Cardinal v Director of Kent Institution,  2 SCR 643
- Knight v Indian Head School Division No 19,  1 SCR 653
- Canada (AG) v Inuit Tapirisat of Canada,  2 SCR 735.
- Knight, supra.
- Baker, supra; Knight, supra
- Baker, supra
- Baker, supra.
- 2747-3174 Quebec Inc v Quebec (Regie des permis d'alcool),  3 SCR 919
- Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch),  2 SCR 781
- Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities),  1 SCR 623