“Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan.”
Justice David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency”
“The “Quest”, shall we say, for a unified theory of Administrative Law is a constant yearning or aspiration but such a theory, in my view, is probably unattainable, in large measure because there occurs, all along, these repeated shifts in values, and these cognitive or epistemic shifts, in what we consider just or unjust, and true or untrue.”
Justice Yves-Marie Morissette, “Is a Unified Theory of Administrative Law Desirable or Even Possible?”, CIAJ – National Roundtable on Administrative Law, 2020
“Demonstrating that there is an intelligible structure to what might look at first glance like a random collection of discrete rules and standards gathering like barnacles on the hull of a shipwreck will help people to grasp administrative law.”
Why do adjudicators need to understand how the courts interpret their role in reviewing their decisions? At one level, discussions about judicial review are not particularly helpful in the day-to-day work of an adjudicator. Assuming that all adjudicators are committed to running fair hearings and writing intelligible decisions, there’s not much assistance provided by the courts. Adjudicators don’t generally write decisions that they think are “incorrect” but “reasonable”. Of course, the underlying principles of administrative law do play a role in the adjudicators’ world – the basic principles of procedural fairness and natural justice as articulated by the courts.
However, understanding one’s place in the world of administrative justice is a worthy goal for an adjudicator. Feeling that you are part of a justice system that makes sense is important because it helps you feel grounded and can also give purpose to one’s work.
Paul Daly, a professor at the University of Ottawa, has written a book that attempts to provide a unified approach to administrative law, or an explanatory framework: Understanding Administrative Law in the Common Law World.
He writes that his primary goal is to enhance understanding of administrative law through developing a “fresh framework” that can be easily and quickly grasped. As he notes in his introduction (available for download) this is not a small undertaking. The value of this book is in setting out a framework consisting of four values that sometimes complement each other and sometimes require balancing. Those values are: individual self-realisation, good administration, electoral legitimacy and decisional autonomy.
Professor Daly defines “individual self-realisation” as the ability of individuals to plan their affairs “whilst being treated with respect by administrative decision-makers”. I have only a small quibble with the framing of this value. There are also areas of administrative law that deal with collective interests where the collective also has an interest in being treated with respect (whether that is a union or an Indigenous community or some other collective entity).
The second value is “good administration” which is defined as the courts seeking in judicial review to “do no harm” and to avoid compromising effective and efficient public administration. Daly describes his definitions of ‘effective’ and ‘efficient’ as “thin”: effective decision-making is the ability of an administrative decision-maker to pursue its objectives; and efficient decision-making is making decisions in a cost-effective manner. Daly provides an example of the judicial concern with good administration — their flexible approach to the content of procedural fairness “which is carefully calibrated so as not to impose overly onerous obligations on administrative decision-makers”. Where courts play a more active role is in policing consistency in decision-making, on the “reasonable assumption … that consistent decision-making is more likely, in the long run, to lead to effective and efficient public administration”.
The third value is “electoral legitimacy” or respecting the roles of elected representatives. This is similar to the principle of judicial deference — the acceptance of the courts of the policy choices made by elected officials.
The fourth value is one that is of the most direct relevance to adjudicators — what Daly terms “decisional autonomy” or maintaining distinct roles for courts and administrative decision-makers. I would add, more colloquially, that it is “staying in your lane” or “sticking to your knitting”. In theory, the roles are clear – the court assesses the lawfulness of a decision and the merits are left to the administrative decision-maker. Professor Daly notes that decisional autonomy “preserves distinct areas in which different decision-makers can do what they do best”.
The rest of the book examines administrative law through the lens of these four values covering such topics as procedural fairness, substantive review, remedies, and the scope of judicial review. These chapters are a good overview of administrative law jurisprudence from the common law jurisdictions (largely the Commonwealth).
Professor Daly also addresses the appropriate response of judges to conflicts between the four values. He argues that judges should reconcile the values to guide their development of doctrine as well as the decision in individual cases. He uses a case study on the doctrine of legitimate expectations to demonstrate how the values might guide the resolution of difficult administrative law questions. He identifies the “crescendo of criticism” of the incoherence of the doctrine of legitimate expectations. He also recognizes the diverse values that have been identified in the case law and the tension between them:
On the one hand, good administration and individual self-realisation have been invoked to support judicial enforcement of legitimate expectations. On the other hand, electoral legitimacy and decisional autonomy have been relied upon by judges fearful that enforcement of legitimate expectations will cause them to trespass in the political domain.
Through his analysis, Professor Daly shows that it is possible to reconcile the four values in addressing legitimate expectations through his pluralist approach. The broader implication is that this approach can be used for any area of administrative law. The values and the balance between them, he suggests, is an appropriate destination for the development or evolution of administrative law.
In his final chapter, Professor Daly assesses his proposed framework against the following criteria: fit, transparency, coherence and morality. This chapter is a defence of the role of the judiciary in regulating administrative action against those who argue against “judicial activism”. Professor Daly states that judges have not been guilty of “overstepping the mark, of trespassing in the domain of politics”. He writes that judges should be understood as having used the four values “to provide an intelligible structure to contemporary administrative law”.
This book is a worthwhile exploration of the values that should permeate judicial review of administrative action. It should stimulate discussion amongst the judiciary about their appropriate role in judicial review. It can also inform discussions at the political level about the role of the judiciary in the administrative state. From those of us on the outside, and especially adjudicators, both will be interesting discussions to observe. And for adjudicators, the book provides a framework for understanding the “barnacles on the hull of a shipwreck” that is administrative law.