The Foundations of Administrative Law (2024)

The Foundations of

Administrative Law

Learning Outcomes

After reading this chapter, you will understand

• the six fundamental principles of administrative law;

• the kinds of individuals and bodies that must observe

the principles of administrative law, and the kinds of

exercises of power that administrative law governs;

• the meaning of “jurisdiction” and why agencies must

act within it;

• the meaning of “discretion” and how it must be

exercised;

• the rule against subdelegation;

• what makes subordinate legislation valid or invalid;

• the requirement that off‌icials and tribunals follow fair

procedures when deciding disputes;

• the relationship between procedural fairness and

natural justice;

• the components of procedural fairness;

• the main statutes that set out the rules of fair

procedure;

• the application of the rules of fair procedure in

different contexts; and

• the role of the superior courts in ensuring, through

judicial review, that the executive branch of

government follows the principles of administrative

law.

What Is Administrative Law? 50

Fundamental Principles of Administrative Law 50

Why Did Administrative Law Develop? 51

Who Is Subject to Administrative Law? 52

Evolution of Administrative Law 53

Jurisdiction 57

What Is Jurisdiction? 57

Sources of Jurisdiction: Statutes and Common

Law 57

Requirement to Act Within Jurisdiction 58

Jurisdiction and Procedural Fairness 58

Further Reading 86

50 PART I PRINCIPLES AND THEORY

The effect of agencies on the lives of Canadians is pervasive. They impact

almost every aspect of our daily lives morning through night. Behind the

waking sounds of the clock radio is the CRTC, the licensor of the radio

station. The electricity powering the radio is provided by Ontario Hydro.

The furnace, hot water heater and the stove may all run on natural gas

which is provided under federal and provincial regulation. The eggs and

the milk in the morning omelette are subject to grading and production

quotas set by provincial egg and milk marketing boards.

This plethora of governmental agencies is a ref‌lection of the increase in

government services and responsibilities since the Second World War. There

are now about 1,500 agencies in Canada, of which [551] are in Ontario.

They range widely in size and nature from the Wolf Damage Assessment

Board to the Ontario Labour Relations Board. They also vary in the way they

function and in their relations with the government and the public.

Administrative agencies have evolved … into a signif‌icant and important

manifestation of government. Because each agency has been created

individually and on an ad hoc basis, there is extraordinary variety and

inconsistency in their powers, methods of operation, relations with their

ministries, etc.

Robert W Macauley, Directions: Review of Ontario’s Regulatory Agencies

Report (Toronto: Queen’s Printer for Ontario, 1989) at 1-1, 1-2

What Is Administrative Law?

Administrative law falls within the area of public law and deals with the relationship

between government and its citizens. It primarily regulates the activities of the executive

branch of government, rather than the legislative or judicial branches. Administrative

law is the body of rules and principles that regulate how the government departments

and agencies that administer and enforce our laws, and other bodies created or given

powers by statute, must behave when carrying out their functions. It ensures that

government actions are authorized and that laws are administered in a fair and rea-

sonable manner. Administrative law also encompasses the authority of the superior

courts to supervise how these department s and agencies carry out their powers, the

procedures that these courts follow, and the remedies that the courts can provide

when departments or agencies act outside their authorit y or exercise their powers in

an unreasonable or unfair manner.

Fundamental Principles of Administrative Law

Administrative law is founded on six fundamental principles:

1. Decision-makers who exercise powers granted by statute (“administrators”)

must stay within their legal authority, or jurisdiction.

2. Administrators must exercise their judgment in a reasonable manner when

they have discretion in making decisions.

3. Administrators must follow fair procedures when making decisions that affect

a person’s rights or interests. This principle is known as “procedural fairness”

CHAPTER 3 THE FOUNDATIONS OF AD MINISTRATIVE LAW 51

or, in some cases, “natural justice.” Procedural fairness protects the rights and

interests of persons affected by a decision by providing for

a. the right of persons to be given notice of intended decisions that may

affect them and the right to be heard before such decisions are put into

effect; and

b. the right to an impartial decision-maker.

4. A person to whom the legislature has delegated authority to carry out a

function may not delegate it to someone else. There are some exceptions

to this principle, which is known as the “rule against subdelegation” and

which is important but less central to administrative law than the f‌irst three

principles.

5. To be valid, subordinate (or delegated) legislation must conform to the statute

under which it is passed. In other words, regulations and by-laws must be

consistent with the objectives of their enabling statutes and the scope of the

regulatory powers set out in those statutes. This is an important check on

the power of the executive branch of government to make laws that are not

subject to review by the legislature.

6. If decision-makers violate any of the above principles, the superior courts

have an inherent power to intervene to rectify this failure. This intervention is

called “judicial review.” It is an important mechanism for preventing abuse of

executive power because it is available even when the legislature has made no

provision for an appeal of executive actions. As well, any law that a legislature

passes to prevent judicial review is unconstitutional and therefore invalid.

These six principles are discussed in this chapter. For a more detailed discussion of

procedural fairness, see Chapter 7 (Fairness: Bias) and Chapter 8 (Advocacy Before

Government Departments, Administrative Agencies, and Tribunals). For a more

detailed discussion of judicial review, see Chapter 16, Enforcement of Tribunal Orders.

Why Did Administrative Law Develop?

Chapter 2 (Administrative Agencies and Tribunals) described the evolution of the

executive branch of government to include, in addition to government departments,

a new sector of administrative agencies. The main reason for the creation of these

agencies was that governments were taking on a much larger role in regulating social

and economic activities. As well as moving into new areas of regulation, governments

were applying stricter or more detailed requirements or standards. To support this

expanded role, the powers of central departments were increased, and the new

agencies were given wide-ranging responsibilities intended to complement—or,

in some cases, replace—various functions otherwise performed by departments.

Their responsibilities included legislation, enforcement, administration, and

adjudication.

The more the government intervened in the daily lives of citizens, and the broader

the powers granted to its departments and agencies, the more important it became to

implement a system of rules for scrutinizing and regulating these activities. In particu-

lar, it was essential to maintain the separation of powers among the three branches of

government by preventing departments and agencies that were part of the executive