Administrative Law

Administrative Law (and the same might be said of Constitutional Law) is for losers. People who receive decisions from government that they like do not challenge them in Court. Principles of fairness and reasonableness are developed in the context of procedural fairness to losers in public decision-making - the student expelled from school, the professional denied a license to practice, the company fined for regulatory infractions, the vanquished in a labour dispute. This is, in some respects, as it ought to be. Persuading losers that an adverse decision was fair and reasonable is one of the central characteristics of the rule of law. But seen from another perspective, that of the integrity of public decision-making, whether a decision is positive or negative for a particular party is beside the point.

There have been a considerable number of allegations of late that the Federal Government has been improperly interfering with independent Federal Agencies, Board and Commissions (or, for short, Federal ABCs). From a dispute about veiled women voting to a dispute about shutting down a nuclear facility, both the diversity and the importance of independent administrative ABCs has been on display. But just how independent are they? When we refer to a body as at “arm’s length” from the Government, does that imply it still may be within the Government’s grasp. Below I suggest these administrative bodies may not be as independent as we think they are, but that their vulnerability to government interference is precisely what is intensifying public scrutiny of government and enhancing public support for administrative justice.

On Friday, March 7, 2008, the Supreme Court released Dunsmuir v. New Brunswick (2008 SCC 9), a stark reversal of the last decade of administrative law jurisprudence on the issue of the standard of review. This decision seeks to quiet the steady drumbeat of criticism of the Court's Standard of Review jurisprudence while remaining true to the culture of deference. The centrepiece of the judgment is the collapsing of the standard of patent unreasonableness and the standard of reasonableness simpliciter into a single standard of reasonableness. While this move responds to the concern over arcane and artificial distinctions between shades of unreasonableness, it is unlikely to solve the standard of review dilemma, for the reasons explored below [note, a version of this comment was posted under the title "Dunsmuir: Plus ça change" with TheCourt.ca]

A symposium on "The Future of Administrative Justice" was hosted by the Faculty of Law in January 2008. It explored the future of administrative justice by bringing together academics, participants in the tribunal sector and government policy makers to dialogue about improvements to administrative tribunals in Ontario and other jurisdictions.

A 28-page report on the symposium has now been released (May 2008), which summarizes the presentations and the roundtable discussion that wrapped up the day.

• Future of Administrative Justice Symposium Report (PDF)

The keynote address was given by Lord Justice Robert Carnwath, Senior President of Tribunals, England and Wales. Read the keynote address (PDF).

The symposium was also recorded on video, and the each session of the symposium can be viewed online from the symposium web page. The web page also includes other useful papers and background material.

On June 4, 2008, a Roundtable was held at the Faculty of Law, University of Toronto on the Dunsmuir v. New Brunswick decision from the Supreme Court of Canada (handed down in March of 2008).  The aim of the Roundtable was to explore the implications of this decision for the development of Administrative Law, and in particular the Court's wide-ranging discussion of the standard of judicial review of administrative action, deference, and the applicability of procedural fairness to public office holders.

The background material for the Roundtable, including the Dunsmuir case, the facta filed at the Supreme Court, and some early commentaries are available for download at: http://www.law.utoronto.ca/conferences/dunsmuir.html.

Below, we have prepared a summary (in PDF format) of the themes, ideas and arguments raised during the Roundtable in the hopes that it will serve as a catalyst for further discussion and debate.  We invite comments on any aspect of the discussion which might interest readers of this blog.

• Summary of the Roundtable on Dunsmuir (PDF)

1.   Introduction

Pierre’s Lortie’s recent paper[1] seeks to discredit federal reform initiatives to create a national securities commission by making the following claims:  Canadian capital markets rank above those in other countries as various international bodies suggest; the empirical evidence does not exist to support such a reform; and, the current passport system that operates in tandem with the Canadian Securities Administrators “constitutes[s] an example of Canadian federalism at its best” and change should not be implemented without compelling reasons.[2] Lortie suggests that Canadian investors, junior issuers, and the fairness and efficiency of Canadian capital markets will not benefit under a national securities regulator. Rather, the status quo is superior as it has allowed Canada’s financial system to outperform those in other countries.