Administrative Law in Context, 4th Edition

754 Pages·2022·227.15 MB·English

by  Colleen M. Flood, Paul Daly

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Administrative Law in Context
FOURTHE DITION
Editors
Colleen M Flood
Faculty of Law
University of Ottawa
Paul Daly
Faculty of Law
University of Ottawa
(§ond
Toronto, Canada
2022
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COPYRIGHT
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Library and Archives CanadaC ataloguingi n Publication
Title: Administrative law in context / edited by Colleen M. Flood, Paul Daly.
Names: Flood, Colleen M., editor. I Daly, Paul, 1983-editor.
Description: Fourth edition. I Previously published: Toronto, Canada: Emond Montgomery Publications Limited, 2018.
Identifiers: Canadiana 20210199768 I ISBN9 781774621165 (hardcover)
Subjects: LCSH: Administrative law-Canada-Textbooks. I LCGFT:T extbooks.
Classification: LCC KE5015 .A845 2021 I LCC KF5402 .A845 2021 kfmod I DDC 342.71/06-dc23
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FOREWORD
As a retired judge of now 80 years of age, I will indulge myself by taking this opportunity to tell a story about my early
experience with administrative law. My practice was in regulatory law, largely in the railway and commercial airline in
dustries. Casesw ere heard by the then Canadian Transport Commission. Until 1971, appeals were taken, on leave being
granted, directly to the Supreme Court of Canada. After the establishment of the Federal Court in 1971, appeals were
taken, again upon leave being granted, to the Federal Court of Appeal. I practised administrative law in what I call a
golden era for practitioners-during the 1970s and 1980s and up to 1992, when I was appointed to the Federal Court,
Trial Division. I say "golden era" because it was a time when, if counsel thought the tribunal had erred in law, leave to
appeal was sought and rarely denied. We argued the merits and got a decision-no detours through the labyrinth of
standard of review.
For anyone who has read my Supreme Court judgments about standard of review, you will know that I am no fan. Ini
tially, I tried to convince my colleagues that unless a statute expressly provided for deferential review, or where that
standard was necessarily implicit in the enactment of a privative clause, legal questions decided by an administrative
tribunal (often questions of statutory interpretation) should be decided on a correctness standard. Well, I lost that bat
tle in Canada (Citizenship and Immigration) v Khosa.1 So, if I had to accept application of standard of review on legal
questions, the process should be made as simple as possible through adoption of what was essentially a categorical ap
proach in which, with limited exceptions, all tribunal decisions on questions of law were to be decided on a reasonable
ness standard. But if you went back and looked at any of my decisions on statutory interpretation, you'd have a hard
time distinguishing between a correctness and a reasonableness review of the tribunal decision.
In addition to minor tinkering, about every ten years, the Supreme Court has embarked on a major overhaul of the
doctrine of standard of review: starting with CUPEv NB Liquor Corp2 in 1979, then UES, Local 298 v Bibeautt3 in 1988,
Canada (Director of Investigation and Research) v Southam lnc4 in 1997, Dunsmuir v New Brunswick5 in 2008, and now
Canada (Minister of Citizenship and Immigration) v Vavilov6 in 2019. Of course, this major decennial overhaul requires
lawyers and judges to adjust their approach to the standard of review and requires academics to provide coherence to
each new approach. The fact that the standard of review has to undergo major revisions every decade or so, with the
recent intent being simplification, might make one think about the soundnesso f the doctrine.
In my view, the Supreme Court took a step in the right direction in Vavilov when it decided that statutory appeals
should be decided on a correctness standard. However, there is yet a further step to be taken. Judicial reviews of legal
questions decided by administrative tribunals should also be decided on a correctness standard. Whether the process is
called an appeal or a judicial review, a court is performing the same function: reviewing the tribunal's decision for le
gal error.
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Having gotten all that off my chest, I have to acknowledge that my view is not the law, so I turn from what I would
like the law to be to what the law is and its exposition in Administrative Law in Context, Fourth Edition. The first
edition of this work was published in 2008, so it is apparent that administrative law evolves rapidly, with updates re
quired every three to four years. This fourth edition is a compilation of papers written by recognized and acclaimed
administrative law scholars and practitioners. The layout of the book helpfully directs the reader by separating the con
tents into four parts: Themes and Concepts, Procedural Fairness, Substantive Review, and Forums. The fourth edition is
timely because it addresses, in its various aspects, the Supreme Court's latest major foray into administrative law in
Vavilov.
Colleen Flood and Paul Daly are leading academics in the field of administrative law. They are superbly qualified to
have produced the fourth edition of Administrative Law in Context. In compiling this text, they have engaged col
leagues who are experts in their own right to make a truly comprehensive analysis of the wide scope of administrative
law. This is a readable volume of virtually everything there is to know about administrative law in the early years of the
third decade of the 21st century. From the malleable nature of the "rule of law," to Aboriginal administrative law, to
questions of procedural fairness, to the duty to consult Indigenous Peoples, to standard of review after Vavilov, to
Crown liability for negligent administrative acts-to name but a few of the topics in this volume-it is obvious that this
is a most comprehensive work. Certain important cases are analyzed in depth where it is considered to be instructive.
This is a work to which, in addition to all law students, every judge and every lawyer who may be engaged in the
practice of administrative law should have ready access. The bar and the bench and the wider legal community are in
debted to ProfessorsF lood and Daly and their colleagues for producing this up-to-date and comprehensive exposition of
all issues involving administrative law. Administrative Law in Context, Fourth Edition is a valuable contribution to the
legal community. I commend Professors Daly and Flood for undertaking this important project and for contributing to
our understanding of this subject. They deserve great credit and our gratitude for the extraordinary time and effort
they have devoted to producing this important work.
Marshall Rothstein
August 2021
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PREFACE
This fourth edition of Administrative Law in Context has come to pass amongst the chaos and challenges of COVID-19.
Despite these hard times, the development of our new text has been a rewarding and rejuvenating experience. This
new edition sees a change at the helm, with Paul Daly joining as co-editor, replacing outgoing editor Lorne Sossin. We
are all indebted to (now Justice) Lorne Sossinf or his inspired leadership of this text over the last three editions and
thankful for his outstanding contributions to research, to practice, to teaching, and now to jurisprudence.
One thing that has stayed constant throughout all four editions is our emphasis on the differing contexts of adminis
trative decision-making across Canada. We have hoped to capture that vibrancy and the reality that the application of
administrative law happens not only in a courtroom but across myriad government departments, agencies, boards, com
missions, and tribunals-affecting the lives of so many Canadians.
Apart from emphasizing the heterogeneity of administrative decision-making, our goal has been to create an accessi
ble, readable text that reflects many perspectives in administrative law. To this end, we are so very proud to include in
this volume scholars and teachers from across Canada, with some of the most experienced voices in the field, as well as
many new ones. We continue to hope this format-an edited collection spanning the breadth and depth of administra
tive law, combined with online resources-will continue to do justice to the dynamic nature of the field. Our sincere
thanks to our contributors in this edition and in the previous editions for their hard work and fantastic chapters. But our
thanks are even more heartfelt for this fourth edition, as our authors have delivered their chapters despite the exigen
cies the COVID-19p andemic has put upon them.
The most obvious changes to this fourth edition are the revisions and insights stemming from the Supreme Court's
new take on substantive review in the Vavilov case. Paul Daly provides the most cogent summary possible of the issues
at stake, grounded in a historical perspective provided by Audrey Macklin. Whilst all authors have revised and recali
brated their chapters as needed following the Vavilov developments, other new voices and chapters include Sheila
Wildeman providing a fascinating account of the remedy of habeas corpus, Alexandra Flynn analyzing judicial review of
municipal decision-making, Martine Valois explaining the quasi-constitutional status of adjudicative independence in
Quebec, Jennifer Rasot aking a look at front-line administrative decision-making, Peter Carver explaining why the issue
of "core" jurisdiction of the superior courts is-again-on the administrative law radar, and Mary Liston navigating the
divide between public law and private law.
Because administrative law is ever evolving, a further goal was to create a flexible, living text. To this end, the book
is accompanied by a website, at <httRs://adminlawincontext.emond.ca>, where both students and teachers can find
edited and full-text cases for each chapter; recommendations for additional readings; and important additions, clarifi
cations, and updates to the published text. Readers may also find some of their favourite chapters from earlier editions
that they may wish to review at <httRs://emond.ca/alc4>.
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We would also like to extend our grateful thanks to the many people at Emond Publishing who have worked through
out a pandemic to get this fourth edition to press, particularly Darren Smith, Kelly Dickson, Natalie Berchem, Tom Pen
ner, and Cindy Fujimoto. We are also grateful for the administrative and research assistance provided by Arianne Kent
and Kelli White, both JD candidates at the University of Ottawa, for this fourth edition.
Finally, we would like to thank all students of administrative law-past, present, and future. You are why we do this
work, and we hope that you begin to love, as we do, the field of administrative law.
Colleen M Flood
Paul Daly
August 2021
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LIST OF CONTRIBUTORS
WA Bogart
Online chapter: The Tools of the Administrative State and the Regulatory Mix, <httRs:/ /emond.ca/alc4>.
WA (Bill) Bogart, BA, LLB (University of Toronto), LLM (Harvard), is a distinguished university professor of law at the Uni
versity of Windsor (ret). Bill has held several Social Sciences and Humanities Research Council of Canada grants to sup
port his research, has been a Virtual Scholar in Residence for the Law Commission of Canada, and has been a frequent
government consultant. He is an author/editor of eight books-Off the Street: Legalizing Drugs (Toronto: Dundurn
Press, 2016) is his latest. He writes and comments frequently for various media.
Genevieve Cartier
Online chapter: Administrative Discretion: Between Exercising Power and Conducting Dialogue, <httRs:/ /emond.ca/alc
1>.
Genevieve Cartier is a professor of law at the University of Sherbrooke. She holds an SJDf rom the University of Toronto
and an LLM from Cambridge University. A member of the Consultative Committee of the Law Commission of Canada
from 2003 to 2006, she teaches and researches in the areas of public law and jurisprudence. Her work focuses on ad
ministrative discretion, the rule of law, and common law constitutional ism. She is currently working on the question of
prerogative powers and on the particular aspect of foreign affairs, with an emphasis on the role of cities in such mat
ters. From 2012 to 2015, she was the full-time research director of the Commission of Inquiry into the granting and ad
ministration of government contracts in the construction industry, set up by the Government of Quebec. Her recent
contributions include a chapter on deliberative constitutionalism in the administrative state, a chapter on the role of
cities on the international scene, and reflections on policy and ethical aspects of public commissions of inquiry. In 2010,
she coordinated a special issue of the McGill Law Journal, dedicated to the celebration of the 50th anniversary of the
Supreme Court decision in Roncarelli v Duplessis.
Peter J Carver
Peter J Carver, MA (Toronto), LLB (McGill), LLM (University of British Columbia), is an emeritus professor of the Faculty
of Law at the University of Alberta. Professor Carver taught and wrote in the areas of Canadian constitutional, adminis
trative, immigration, and mental health law. Prior to his academic career, Professor Carver served as a member of the
Immigration and Refugee Board and practised law in British Columbia. His publications include '" A Principle of Vital Im
portance': The Supreme Court of Canada's Approach to Purposeful Limits on Expression in Section 2(8) of the Charter"
(2017) 75 SCLR1 91 and, with Isabel Grant, "PS v Ontario: Rethinking The Role of the Charter in Civil Commitment"
(2016) 53:3 Osgoode Hall LJ 999. Professor Carver wrote the chapter "Getting the Story Out," concerning public in
quiries, in the first two editions of Administrative Law in Context and "Top Ten Questions and a Few Answers About
Substantive Review" in the third. Professor Carver served as editor-in-chief of the Review of Constitutional Studies be
tween 2014 and 2018.
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PaulD aly
Associate Professor Paul Daly holds the University Research Chair in Administrative Law and Governance at the Universi
ty of Ottawa, to which he was recruited from the Faculty of Law, University of Cambridge. Previously, he was succes
sively assistant professor, associate dean, and associate professor at the Faculte de droit, Universite de Montreal and
held visiting positions at Harvard Law School and Universite Paris II, Pantheon-Assas. A graduate of University College
Cork (BCL, LLM), the University of Pennsylvania Law School (LLM), and the University of Cambridge (PhD), his influen
tial, award-winning scholarly work on public law-dozens of books, peer-reviewed journal articles, book chapters, and
shorter pieces-has been widely cited, including by the Supreme Court of Canada, various other Canadian courts and
tribunals, the High Court of Australia, the Irish Supreme Court, and the New Zealand Supreme Court. His blog, Adminis
trative Law Matters, was the first blog ever cited by the Supreme Court of Canada. Notable publications include A The
ory of Deference in Administrative Law: Basis, Application and Scope (Cambridge: Cambridge University Press, 2012)
and Understanding Administrative Law in the Common Law World (Oxford: Oxford University Press, 2021) . Since Sep
tember 2019, he has been a part-time member of the Environmental Protection Tribunal of Canada.
Jennifer Dolling
Jennifer Dolling is an Ontario lawyer. She holds a BA in criminology with high distinction from the University of Toronto
(1996); an LLB from Queen's University (1999); and an LLM with a specialty in health law and policy from the University
of Toronto (2009), for which she was awarded a Canadian Institutes of Health Research Training Program Fellowship.
After her call to the Ontario bar in 2001, Jennifer practised for several years in the areas of medical malpractice, pro
fessional negligence and liability, health disciplines defence, insurance defence, and personal injury. She has appeared
before administrative tribunals, including the Health Professions Appeal and Review Board. After completing her LLM,
Jennifer worked as a research associate with the Faculty of Law, University of Toronto. She was a member of the Re
search Ethics Board at Mount Sinai Hospital from 2007 to 2012. She also worked as research counsel in the Samuel
Lunenfeld Research Institute at Mount Sinai Hospital. Jennifer was a Council Member of the College of Physiotherapists
of Ontario from 2015 to 2019, and chair of the Registration Committee. For several years, Jennifer was a sole practi
tioner, with her practice focused on the negotiation of clinical research contracts for hospitals and charities. She cur
rently works for the Ontario College of Pharmacists.
Colleen M Flood
Colleen M Flood, FRSC,i s a professor at the University of Ottawa and a University Research Chair in Health Law and Pol
icy. She is inaugural director of the Ottawa Centre for Health Law, Policy and Ethics. From 2000 to 2015, she was a pro
fessor and Canada Research Chair at the Faculty of Law, University of Toronto, with cross-appointments to the School of
Public Policy and the Institute of Health Policy, Management and Evaluation. From 2006 to 2011, she served as a scien
tific director of the Institute for Health Services and Policy Research, one of the Canadian Institutes of Health Research.
Her most recent book is a co-edited volume entitled Vulnerable: The Law, Policy and Ethics of COVID-19( Ottawa:
University of Ottawa Press, 2020)
Alexandra Flynn
Alexandra Flynn is an assistant professor at the University of British Columbia's Allard School of Law. Her teaching
and research focus on municipal law and governance. Professor Flynn's current project, funded by the Social Sciences
and Humanities Research Council of Canada, examines the legal relationship among Indigenous communities and munic
ipal governments. The goal of this project is to illuminate the legal obligations of municipal governments,
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including the duty to consult and accommodate and create reciprocal, respectful relationships with Indigenous Peoples
and First Nations. She is the author of many academic and popular media contributions and is currently working on a
book entitled Micro Legal Spaces: The Laws of Neighbourhoods and Communities, which examines overlapping geogra
phies and governance of city spaces, including the formal and informal bodies that represent residents. She has a long
history working in law and policy and is a past TEDx speaker and a frequent media commentator.
Craig Forcese
Craig Forcese is a full professor at the Faculty of Law (Common Law Section), University of Ottawa, where he also
serves as vice dean (graduate studies). He is also an adjunct research professor and senior fellow at the Norman Pater
son School of International Affairs, Carleton University. Craig has a BA from McGill University; an MA from the Norman
Paterson School of International Affairs, Carleton University; a JD (summa cum laude) from the University of Ottawa;
and an LLM from Yale University. He is a member in good standing of the bars of Ontario, New York, and the District of
Columbia.
Cristie Ford
Cristie Ford is a professor at the Peter A Allard School of Law, University of British Columbia (UBC). Her research focus
es primarily on regulatory theory and administrative law as they relate to international, US, and Canadian financial and
securities regulation, as well as to access to justice and the regulation of the legal profession. Her most recent
book, Innovation and the State: Finance, Regulation, and Justice (Cambridge: Cambridge University Press, 2017), ar
gues that innovation is the most profound challenge facing regulation today and proposes epistemological, normative,
and technique-oriented responses to that challenge. Prior to joining UBC, Professor Ford practised in securities regula
tion and administrative law, including several years at Davis Polk and Wardwell LLP in New York. She obtained her mas
ters and doctoral degrees from Columbia Law School, where she also taught in a variety of capacities. She is a member
in good standing (non-practising) of the bars of British Columbia and New York (State and Federal).
Evan Fox-Decent
Evan Fox-Decent is a full professor and Canada Research Chair in Cosmopolitan Law and Justice at the Faculty of Law,
McGill University. He teaches and publishes in legal theory, administrative law, First Nations and the law, immigration
law, agency law, international law, and the law of fiduciaries. His first book, Sovereignty's Promise: The State as Fidu
ciary (Oxford: Oxford University Press, 2011) , explores the implications of viewing the state and its institutions as fidu
ciaries of the people subject to their power. His second monograph, with Evan J Criddle, is Fiduciaries of Humanity:
How International Law Constitutes Authority (New York: Oxford University Press, 2016). This work explains the authori
ty of international law by viewing states as stewards of humanity as well as their own people.
Kate Glover Berger
Kate Glover Berger is an assistant professor at Osgoode Hall Law School, York University. Her expertise lies in adminis
trative and constitutional law, with an emphasis on administrative constitutionalism, the nature of the administrative
state, institutional design and procedural fairness, and constitutional architecture and amendment. Some of her recent
publications appear in the McGill Law Journal, the Journal of Law and Social Policy, the Journal of International Con
stitutional Law, and the Supreme Court Law Review, along with multiple edited collections. She has been invited to
present her research around the world, including at national and international conferences; as an expert witness before
the Special Senate Committee on Senate Modernization; and in professional education programs for judges, lawyers,