Overview

The fifth edition of Administrative Law contains many new features. There has been extensive reorganization of the material covered to reflect changing patterns in Canadian administrative law and the greater explicit links in the jurisprudence between administrative law and constitutional law. The work now starts with a much more extensive overview section featuring the seminal judgment of the Supreme Court of Canada in Baker. The influence of this case and also the continuing output of the Supreme Court on the issue of standard of review have also resulted in much-changed chapters on substantive review, including the use and misuse of discretion. The procedural fairness chapters also reflect recent case law dealing with the intersection between the Charter and administrative law. As in previous editions, much of the work consists of authors’ notes, comments, and analysis.

While Administrative Law is primarily a teaching text, it is widely regarded by practitioners, judges, board members, counsel, and staff as an invaluable guide to this complex, important, and changing field of law.

Top ∧Features

• The Administrative State and the Rule of Law
• The Constitutional Basis of Judicial Review
• The Role of Judicial Review
• Fairness: The Threshold
• The Choice of Procedures
• Institutional Decisions
• Bias and Lack of Independence
• Rule-Making
• The Standard of Review
• Applying the Standard of Review
• The Jurisdiction of Tribunals and The Use and Misuse of Discretion
• Remedies for Unlawful Administrative Action: Standing
• The Discretion of the Court
• Money Remedies

Top ∧Preface

The gaps between editions of this book have been growing. Last time it was over six years; this time it is over seven. Fortunately, that does not speak to the dearth of new material or an absence of evolution in administrative law. Indeed, the situation is quite the converse. In virtually every area covered by this set of materials, there has been new law and, in a number of instances, there have been dramatic changes. Indeed, that has been part of the problem. Keeping abreast of the case law remains a daunting task. As well, two further members of the original team of four have retired from the project--John Evans on his appointment to the Federal Court and Hudson Janisch on the strength of his impending retirement. That left David Mullan to soldier on alone after bullheadedly refusing Paul Emond's offer of another collaborator.

In the end, the project proved more onerous than I had contemplated and many promises of delivery were broken, much to the chagrin of Marie Maidman while she was still at Emond Montgomery. Fortunately, for the academic year 2000-1, Hudson Janisch (with the invaluable assistance of Evan Smith, then a student at the University of Toronto) prepared a top-notch supplement for use by students across the country. Whole chunks of that were able to be incorporated into the new edition, and without it this version might never have seen the light of day. Its appearance also owes much to the gentle but persistent urgings of Nancy Ennis of WordsWorth during the final weeks of preparation.

Previous users of the work will notice a number of structural changes from the fourth edition. Part I is now much more substantial. The material on the constitutional underpinnings of judicial review has been transferred to that part, a step taken in the light of both the growing intersection of administrative law and constitutional law and the fact that, with constitutional law taught more and more often in the first year of the LLB program, students come to the course bringing information and curiosity about those links. Thereafter, in part I, there is a study of Baker v. Canada (Minister of Citizenship and Immigration). This is probably the Supreme Court's most important administrative law judgment since at least the late 1970s. Moreover, unlike most other judicial review judgments, it covers a broad range of issues across the procedural, substantive, and remedial spectra. It also contains some very useful insights into the exercise of discretion within government departments. As such, it is an ideal overview case with which to both start and end a course in administrative law.

The second major structural change has been the collapse of previous parts III and IV on substantive review, containing seven chapters, into a single part containing just four chapters. The reasons for this are twofold. First, and quite understandably, I was under pressure from both Paul Emond and end users to reduce the size of what had become a rather unwieldy book. It seemed to me that this was the part where there was most room for reduction, a judgment based primarily on the fact that, in my own course, I seldom covered more than a fraction of this material. Second, the evolution of the law governing judicial review on substantive grounds brought into question the pedagogical wisdom of the previous organization. In short, it was becoming increasingly difficult to fit the new and important case law within the framework of the existing seven chapters.

A detailed list of other changes in this edition reflecting new case and statutory law is beyond the scope of this preface. However, some of the highlights include the imposition of a common law duty to give reasons on at least some statutory authorities; a refining of the understanding of when the Canadian Charter of Rights and Freedoms applies to the administrative process; masses of judgments from the Supreme Court of Canada on the standard of review; the extension to those exercising discretionary power of the "pragmatic and functional" approach to determining the appropriate standard of review; the emergence of underlying constitutional principles as an element in both tribunal and executive decision making; continued judicial protection of high-level executive and ministerial prerogatives (Baker notwithstanding); further refinements of the law governing internal tribunal consultative practices; and the adoption of a conservative approach toward tort liability for regulatory failure and the development of a law of constitutional torts.

All of this has occurred against the backdrop of continued experiments in privatization, corporatization, outsourcing, and deregulation as many governments across the country continue to pursue a "conservative" agenda. This also has led to abolition of some agencies (such as the BC Human Rights Commission) and the "rationalization" by amalgamation of others. Indeed, doing more with less has become the order of the day for many departments, agencies, and tribunals. Somewhat strangely, all of this has had little impact on judicial review, since the courts have by and large been "scared off" by the broad discretionary powers that are typical to the pursuit of these agendas. It will, however, be interesting to observe whether this changes over the next few years as the bite of these initiatives is felt increasingly.

I submitted the manuscript for the fifth edition in early December 2002. However, account has been taken of subsequent developments up to the page proof stage (for which the cutoff date was April 11, 2003). Unfortunately, this did not permit the inclusion of three potentially significant judgments at that date still under reserve in the Supreme Court of Canada. Two of those judgments involve institutional bias and lack of independence (chapter 7): Canadian Union of Public Employees v. Ontario (Minister of Labour) (2000), 194 DLR (4th) 265 (Ont. CA) and Canadian Telephone Employees Association v. Bell Canada (2001), 199 DLR (4th) 664 (FCA). The third revisits the issue of the capacity of tribunals to deal with Charter issues (chapter 11): Martin v. Nova Scotia (Workers' Compensation Board) (2000), 192 DLR (4th) 611 (NSCA). The subject matter of both chapters may be affected significantly by the court's reasoning in these three cases. That is, however, the almost inevitable lot of authors of commercially published casebooks.

Throughout the previous edition, the authors from time to time expressed collective opinions or made collective predictions. I have retained those I agree with and expressed some of my own, all the time preserving the use of "we." This is in no sense a pretension to regal status, but rather the result of laziness and an obsession with consistency.

Hudson and John: Many thanks for the opportunity to work with such talented administrative lawyers--who are also fine persons--on the previous four editions. Alice Janisch: What a great index! Paul and Marie: Thanks for sticking with me. You must have been tempted! Nancy: It has been a productive collaboration. Students and other administrative law teachers: My gratitude for stimulating my thinking and apologies to the extent that I have unconsciously absorbed some of your ideas and not provided proper attribution. Liz: Sorry for the run of late nights and occasional (?) moodiness as the project came to a climax.

And then there were none.

David Mullan
April 2003