Early Canadian Administrative Law

The few historically oriented discussions of public administration in Canada tend to take the regulation of railways in the 1850s as their starting point.  But there were early pre-cursors to the administrative state.

The dominant theory of Canadian economic development is that the country was built on the production and export of various ‘staples’. From the forests, lakes and rivers of the North intrepid explorers first brought forth beaver pelts which were exported via Montreal and Quebec City to European markets, where they were used in the fabrication of expensive hats for the fashionistas of London, Paris and beyond. This model of economic development is the ‘staples theory’. First, beavers and later, grain (especially wheat) and various other natural resources, such as timber, were exploited in the interior and distributed by merchants on the coast. This was the backbone of the Canadian economy, later supplemented by industrial production in the east. It is therefore unsurprising that public officials took a keen interest in regulating production of raw materials and facilitating immigration to populate the arable lands of the interior.

I use the term “public officials” somewhat loosely. As Europeans began to establish a foothold in North America, there was no state as such. Of course, there were sophisticated Indigenous governance structures, both within and across communities. But the early European visitors and settlers did not immediately create a Weberian-style state with a monopoly on the use of physical force. Rather, their goal was to exploit the resources of the continent and establish a territorial foothold for exploration and settlement. Notice, too, that the involvement of European states was initially indirect, as much of the European incursion into North America was effected by private companies, such as the Hudson’s Bay Company and the Compagnie des cents associés, and individuals undertaking voyages with only grudging or halfhearted Royal sanction. There was, we might mischievously say, no firm public/private divide.

As trade became more lucrative, however, establishing a state, or at least a state-like structure, became a priority for the European powers.[1] Britain and France were drawn into a conflict in North America whose knock-on effects precipitated Royal regulation of the fur trade from Paris:

[Conflict between British and French interests] had caused a glut of furs in the Paris market, which drove down prices in Europe, and this coincided with the decline in the French hat industry when many of the Huguenot hatters fled to England to avoid religious persecution and the industry shifted to the environs of London. In 1697, Louis XIV decreed that, to prevent the price of fur from declining further, thereby causing a loss of colonial revenues derived from the 25 per cent tax imposed in Quebec, all French fur outposts in the region west along the Great Lakes, with the exception of Fort St Louis along the Illinois River must close. The decree sought to restrict the supply of furs on the market, to help reverse the price decline. The colonial government issued no new trading permits and officially forbade any French colonists from the St Lawrence from travelling to the west…Coureurs du bois continued to rove the region of the Great Lakes…but to avoid the fur quotas they secretly began selling their furs in Albany instead of Montreal…[2]

This was far from the last attempt to regulate the fur trade. In the early days of British rule in Canada, for instance, Governor Murray forbade trade with Indigenous peoples in the interior: commerce was only to be conducted at nominated trading stations; licenses were to be granted for these purposes; traders would have to give a bond worth double the goods they intended to trade; and traders would also have to disclose the weapons they proposed to bring with them.[3] By the end of the century, though, reflecting shifting economic tides, the system of licenses for trade in the interior was “swept away entirely by ordinance”.[4]

Filling Canada with Europeans soon became a priority. Here, too, there was regulation of various sorts, which saw the creation of administrative decision-making structures. The Canada Tenures Act 1822 provided for the extinction of the feudal system of landholding. Individuals could apply to the person administering the province of Lower Canada for commutation of the various feudal rights and burdens payable in return for payment of 1/20 of the value of their property. The Act provided for “the nomination and appointment of Experts for ascertaining the value of such fief or seigniory, according to the course of law in our said Province”. Subsequent legislation made provision for the conversion of holdings into free and common soccage.[5]

In 1832, a controversial head tax was introduced by the An Act to create a Fund for defraying the expence of providing Medical assistance for sick Emigrants, and of enabling indigent persons of that description to proceed to their place of destination.[6] This legislation created Commissioners for the emigrant societies of Montreal and Quebec, and hospitals, and funded their operation by the imposition of a poll tax. The Commissioners were given a statutory direction to use the funds to provide care on site and to send immigrants to areas of the province where they were needed. Interestingly, the legislation also created a private right of action allowing individual prosecutors to keep 50% of penalties imposed on ship captains and pilots who failed to disburse sums appropriately.

Later in the century, after Confederation, when westward expansion was a national priority, the Dominion Lands Act 1872 was designed to facilitate immigration: the legislation “provided that a settler could lay claim to a quarter section of 160 acres on payment of a small registration fee [and] could acquire title to his homestead in three years, provided his settlement duties were fulfilled”.[7]

Recourse was also had to administrative tribunals to resolve contentious issues. The controversial rebellion losses legislation provided for the appointment of Commissioners to ascertain the extent of damage suffered by property owners.[8] The British North America (Trade and Lands) Act 1822 made provision for trade between Upper and Lower Canada and the United States (as perennial an issue pre-Confederation as in the modern era). But the Act also addressed a long-festering dispute between the Canadian provinces about the distribution of import duties charged and collected in Lower Canada on goods bound for Upper Canada. Section 17 of the Act provided for the appointment of arbitrators to resolve the dispute and s. 25 set up a similar mechanism going forward. These arbitrators had the power to compel witnesses and their awards were expressed to be final and conclusive. Meanwhile, Courts of Escheat were established under the British North America (Seigniorial Rights) Act, 1825,[9] with the Commissioners required to follow the laws of England as far as procedure was concerned only “as nearly as circumstances will admit”.

In these schemes, office holders of various sorts figure prominently. As in England, much of public administration was placed in the hands of justices of the peace (often local merchants who used their positions to advance personal political agendas which were not necessarily those of the Empire). Lord Durham deplored the quality of justice generally, and the justices of the peace did not escape his ire.[10] There was no civil service, nor was there even, for that matter, a system of government departments. Offices created under legislation were occupied by individuals who had no necessary allegiance to the authorities.[11] But British administrators came to understand quite well the need for a governmental apparatus to govern Canada effectively:

There was no single body of departmental experts who together concerted government policy and sponsored it in the provincial parliament; and most of the public works and other public undertakings were proposed, not by the executive, but by the members of the assembly, and carried out, not by the heads of departments, but by parliamentary committees. It was this disordered system which [Lord Sydenham’s] measures were designed to correct. By the Union Act of 1840—and this was a fundamental alteration—the executive was provided with a permanent civil list and the assembly was prevented from voting any tax, or any appropriation, for any object, which had not been recommended by the government. To bear the weight of the burden of initiation Sydenham created a board of works and an administration composed of heads of departments; and these men entered the legislature to sponsor and defend government policy.[12]

Long before 1850, then, there was public administration in Canada, with many of the features we now consider commonplace: licensing; administrative agencies; administrative tribunals; privative clauses; private rights of action; and, latterly, government departments with a permanent staff.

The basic forms of the modern administrative state had already begun to emerge, albeit not in a particularly structured way. Rather, they appeared on the scene in an ad hoc fashion in response to specific problems.

[1] Donald Creighton, The Empire of the St. Lawrence: A Study in Commerce and Politics, revised edition(University of Toronto Press, Toronto, 1956), at p. 16: “The [fur] trade enforced commitments and determined policies. The state was based upon it: it was anterior to the state. Until 1663 Canada was governed by a series of trading corporations; then it became a commercial and military state”.

[2] Stephen R Bown, The Company: The Rise and Fall of the Hudson’s Bay Empire (Doubleday, Toronto, 2020), at p. 89.

[3] Legislative Council A p.24 (August 28, 1764).

[4] Donald Creighton, The Empire of the St. Lawrence: A Study in Commerce and Politics, revised edition(University of Toronto Press, Toronto, 1956), at p. 113.

[5] The British North America (Seigniorial Rights) Act, 1825, 6 Geo. IV, c. 59.

[6] LC 1832, c. 17.

[7] Donald Creighton, Canada’s First Century (Oxford University Press, 1970), at p. 26.

[8] 12 Vic, c. 58.

[9] 6 Geo. IV, c. 59.

[10] Lord Durham’s Report, pp. 40-41. In Lord Durham’s view, in the colonies there were no equivalents to the morally upstanding gentlemen of the English countryside.

[11] See Lord Durham’s Report, p. 32.

[12] Donald Creighton, The Empire of the St. Lawrence: A Study in Commerce and Politics, revised edition(University of Toronto Press, Toronto, 1956), at p. 337.

This content has been updated on April 27, 2022 at 14:46.