Why is Administrative Law So Complicated? The Variety of Decision-makers and Decisions

I have uploaded a pre-proof version of the first chapter of A Culture of Justification: Vavilov and the Future of Administrative Law to SSRN: “Why is Administrative Law So Complicated?” Here is an extract:

All Canadians are affected by the administrative state in all sorts of ways: when they return from abroad; apply for a driver’s licence; pay municipal taxes; listen to music on the radio; choose a cable package; or turn on the gas stove. There are officials all over the country who make decisions about who can enter the country, who gets to drive on the roads, how much tax is due, what mix of music, talk and adverts is acceptable on the airwaves, whether cable companies have to offer certain channels and how energy companies can recover investments in infrastructure from users of their services. Hundreds of administrative agencies across Canada churn out thousands upon thousands of decisions every day, about everything from social welfare claims to the amount of French-language content on cable television. These officials are administrative decision-makers. Their decisions are subject to the principles of administrative law.

A further complicating factor in grasping administrative law is, therefore, the sheer variety of decision-makers in the contemporary administrative state.[1] The general principles of administrative law are applied in as diverse a range of settings as can be imagined: everything from the life-or-death context of immigration law, to regulatory decisions about energy and transport which shape the economic future of the country, to matters of culture in the arts and telecommunications sectors. Environmental law, municipal law, tax law: you name it, there is – somewhere – an administrative decision-maker applying it; and, therefore, they are making decisions to which the general principles of administrative law can be applied. In a sense, then, administrative law is shaped by the specific substantive areas of law it is applied to. But as these change, administrative law might well change with it.

The constraints of administrative law, furthermore, are tighter and looser in different contexts. One useful way to conceptualize the administrative state is to perceive it as a spectrum,^[2] along which, as Justice LeBel put it in Imperial Oil, the requirements of the law “may vary in order to reflect the context of a decision‑maker’s activities and the nature of its functions”:^[3]

The categories of administrative bodies involved range from administrative tribunals whose adjudicative functions are very similar to those of the courts, such as grievance arbitrators in labour law, to bodies that perform multiple tasks and whose adjudicative functions are merely one aspect of broad duties and powers that sometimes include regulation‑making power. The notion of administrative decision‑maker also includes administrative managers such as ministers or officials who perform policy‑making discretionary functions within the apparatus of government.^[4]

This well-known idea of a “spectrum”^[5] can be roughly mapped as follows: Ministers^[6] à Crown Corporations^[7] àSocial and Economic Regulation^[8] à Quasi-Judicial^[9] à Judicial.

On the purely political end of the spectrum lies ministerial decision-making, where political control through conventions of accountability to the legislature predominates. Here, procedural protections are diminished – indeed, in Imperial Oil, an argument that the minister was biased because his department would have won a budgetary windfall from penalizing an oil company failed for precisely this reason. In addition, the range of considerations that a minister might take into account in making a decision is often very broad indeed.

On the purely legal end of the spectrum lies judicial decision-making. By “judicial” in this context, I do not mean decision-making by courts of law. Rather, I am concerned with the application by administrative bodies of objective legal norms to the facts as found. The French term juridictionnelle, which does not have a ready English equivalent, captures the idea. Here, political interference is – or at least should be^[10] – frowned upon, for the distribution of costs and benefits set out by the legislature should not be interfered with by executive fiat.^[11] Legal control is heightened, in the sense that the range of considerations that a judicial decision-maker may legitimately take into account is tightly constrained: if the question is whether an applicant has accumulated enough days of work to claim an entitlement, the decision-maker cannot rove into the applicant’s conduct or utility to society. Procedural protections are at their strongest here, where the decision-making process – the application of objective legal norms to facts after hearing from the parties– closely resembles that of a court of law.

In between the two extremes, the extent of political and legal control varies as one moves back and forth along the spectrum, more strongly legal towards the judicial end, more strongly political towards the ministerial end. Not only, then, are the general principles of administrative law a function to some extent of the specific, substantive areas to which they are applied, the weight of those general principles will vary from area to area depending on the nature of the decision-maker.

To this must be added the huge divergences between the different types of decision which are taken. At the most basic level, some decisions are general in nature – the promulgation of regulations or guidelines, for example – whilst some are specific to identifiable individuals or groups – determinations of refugee status or of minimum carrying requirements for cable providers. These general or specific decisions, furthermore, can be made by all types of decision-maker, from politicians who give no reasons, all the way to adjudicators who give very detailed reasons. And the effects of the decisions can be quite different. The stakes in an immigration case are extremely high, whereas a decision not to fund an application for government support for an academic research project is of a different nature entirely. Even the same type of decision can have different stakes depending on the identity of the parties concerned: if my driver’s licence were revoked, I could still get around using taxis or Ubers; but if a taxi driver’s licence were revoked, the driver and their family would face economic ruin. Administrative law’s general principles, applied by these different decision-makers in such diverse specific areas of substantive law, have to account also for the particularities of the type of decision.

Take three different areas: railways, refugees and regulations.

• As common carriers, railways have long been subject – under the common law and statute – to a variety of duties to those who seek to use their services. In Patchett & Sons Ltd v. Pacific Great Eastern Railway Co.[12] the Supreme Court explained that railway companies have a duty to accept goods for travel – as long as the requests are reasonable. Those obligations of reasonableness are now set out in the Canada Transportation Act, but have to be understood against the backdrop of Patchett and several decades worth of decisions by the Canada Transportation Agency.Complaints can be made under the Act by shippers of goods whose requests were not accepted: they can argue that the railway was not reasonable; the railway can fight its corner; and the Agency adjudicates. Or the Agency can initiate a complaint on its own motion, engaging in a much more flexible and open-ended inquiry.[13] Common law, statute, adjudication, investigation – all meshed into the same statutory scheme. There is a limited right of appeal from decisions of the Agency to the Federal Court of Appeal, with the permission of a judge, only on a question of law or jurisdiction, and a broader right to seek review from the federal cabinet (supported by civil servants in the Privy Council Office).
• Someone who arrives in Canada fleeing persecution can apply for refugee status. At first, a determination will be made by an officer of the Refugee Protection Division: they determine if the person is a refugee or not. This is not an adversarial proceeding, rather, the officer asks questions, explains doubts they may have about the claimant’s story, reviews documentary evidence and makes a decision. If the application is rejected, the claimant can appeal to the Refugee Appeal Division in most instances. Here, the record from the Refugee Protection Division is reviewed, with the appellate body coming to its own conclusion about whether the claimant really is a refugee. An unsuccessful appeal is not necessarily the end of the road: a failed refugee claimant can later resist deportation on the basis of a Pre-Removal Risk Assessment, performed by still another type of official. And at most points in this tale, the claimant can apply to the courts to judicially review unfavourable decisions (and have them issue a stay – putting the proceedings on ice – whilst the review is conducted).
• Railways and refugees involve individuals. Regulations, by contrast, typically involve rules made for the world at large. I say typically because sometimes regulations will target individuals or groups – like regulations freezing assets because of economic sanctions against a foreign country. Regardless, the making of regulations does not involve any sort of adjudicative or inquisitorial proceeding. Rather, they are drafted by civil servants to implement statutes. They can have drastic consequences for individuals and industries. Yet for the most part, the only formal requirement is that regulations be laid before the legislature (Parliament for federal regulations; a provincial legislature for provincial regulations) without a Member of Parliament objecting – and objections never happen. Sometimes, general rules which do not qualify as “regulations” – the definition is a “confused microcosm”[14] – are not subject to any procedural requirements at all.

This is just an apercu of the variety of forms administrative action can take, the range of decision-makers who are involved (sometimes performing different functions) and the differing stakes of the decisions for the individuals concerned. Sometimes the decision-maker will be a sophisticated multi-member tribunal (or even the federal cabinet), but often it will be a lower-level official, such as a civil servant acting on behalf of a Minister.

There is one last strand to consider. There is a reflexive relationship between the principles of administrative law and administrative decisions. The reasons and records of administrative decisions reviewed by judges are now much more extensive than in previous eras. Modern records are voluminous; modern reasons extensive. Administrative proceedings are, increasingly, subject to the open-court principle;[15] access to information legislation imposes high standards of transparency on administrative decision-makers; there are many statutory obligations to give reasons for decisions; considerations of fairness between individual and institutional litigants drive the publication on decision-makers’ websites of scores of decisions; and technological advances facilitate the production of reasons even in respect of large numbers of applications “by employing information technology, using decision templates, drop-down menus and other software”.[16]

The upshot is that a judge conducting a judicial review hearing will have a large volume of material on the desk, reasons running potentially into the hundreds of pages, supported quite possibly by an even more extensive record. It is only natural for courts reviewing reasoned decisions to focus on the internal coherence of the reasons given, interrogating whether they do indeed justify the decision given.[17] A judicial review judge is likely to consider that she has the capacity to test whether the decision-maker’s conclusions follow from their premises: there is no special expertise required to assess whether a decision is logical and rational, or whether it is justifiable in view of the relevant legal and factual constraints. Where there were no reasons to scrutinize, as in previous eras, it was much more difficult for judges to conclude that an administrative decision should be quashed.

Now, where reasons were never given for administrative decisions, the flaws in those decisions or in public administration generally were concealed from the judicial eye. Once reasons came to be given more or less as a matter of course, public administration was on display, warts and all. As soon as judges became aware of shortcomings in public administration (or even of the potential for shortcomings), it was inevitable that they would develop more exacting standards of reasonableness and fairness to hold administrative decision-makers to account.

[1] Lauren Wihak, “The Withering of Correctness Review” in Paul Daly & Leonid Sirota, eds, A Decade of Dunsmuir/Les 10 ans de Dunsmuir (Toronto: Carswell, 2018) 89 at 93.

[2] On the general range of administrative decision-makers, the discussion in Gilles Pépin, Les tribunaux administratifs et la Constitution : Étude des articles 96 à 101 de l’A.A.N.B. (Montréal: Les Presses de l’Université de Montréal, 1969) at 48-69 remains instructive.

[3] Imperial Oil Ltd v Quebec (Minister of the Environment), 2003 SCC 58 at para 31. The following paragraphs draw on “The Language of Administrative Law” (2016) 94 Can BR519.

[4] Ibid.

[5] Martineau, supra note 30 at 628-629, Dickson J, dissenting. See also Apotex Inc v Canada (Attorney General), [2000] 4 FC 264 at para 104, 188 DLR (4th) 145, Evans JA referring to “the spectrum of powers ranging from the legislative, through the administrative, to the judicial”.

[6] I have in mind here government departments headed by a politician who is accountable to a legislature (and perhaps also, as a modern addition to the convention of responsible government, to the public at large) and in whose name departmental officials may act.

[7] I have in mind here the various bodies established by the state to achieve commercial goals; these are relatively rarely subject to judicial review because their activities are primarily commercial in nature, but they are subject to governmental control.

[8] I have in mind here bodies charged with regulating complex aspects of society and the economy. Central banks, telecommunications regulators and competition regulators would fall under this rubric.

[9] I have in mind here administrative tribunals that the legislature has established to settle disputes, usually between an administrative body and an individual. Often these tribunals complement the work of social and economic regulators: in some of its functions, for instance, a telecommunications regulator will act quasi-judicially but in others it will act as a developer of general rules of policy for its regulatory sector.

[10] Ron Ellis, Unjust by Design: Canada’s Administrative Justice System (Vancouver: UBC Press, 2013) inveighs most effectively against political interference, largely unremarked by the wider public, with judicial tribunals.

[11] For a particularly vivid illustration of this point, seeMartin Shapiro, Who Guards the Guardians? Judicial Control of Administration (Athens: University of Georgia Press, 1988) at 112:

Imagine our outrage if, at the end of a court trial, the president of the United States called up the judge and told her how he wanted the case to come out. Let us suppose an agency has held a rule-making proceeding that involved hundreds of hours of testimony and thousands of pages of written submissions. It has listened at length to every interested group and heard the rebuttal of each group to the testimony of every other. It has compiled a thousand-page-long rule-making record. It has then composed a statement showing that it has acted synoptically to consider every significant issue and arrive at the best possible decision. Those who have been watching and participating in such a process are going to be equally outraged if, just before the agency publishes its final rule, the president calls to tell the agency what rule it should adopt.

[12] [1959] SCR 271, 17 DLR (2d) 449.

[13] See e.g. Canadian National Railway Company v Canada (Transportation Agency), 2021 FCA 173.

[14]  Canadian Pacific v Canadian Transport Commission, [1985] 2 FC 136, at p 148, per McGuigan JA.

[15] Toronto Star v AG Ontario,2018 ONSC 2586; Bell Canada v Canada (Environment and Climate Change), 2021 EPTC 3.

[16] R (Agyarko) v Secretary of State for the Home Department,(2017) 1 WLR 823 at para 71, Lord Reed.

[17] See also Michael Taggart, “Deference, Proportionality, Wednesbury” (2008) NZLR423 at 463-464.

This content has been updated on July 31, 2023 at 15:00.