Yes, Virginia, there is an administrative law.
But what is it?
…It is now recognized. But it is not quite accepted. It fits no antique mould. Not knowing just what it includes, the legal profession has never felt quite at ease with it nor quite known how to handle it.
Albert Abel, “The Dramatis Personae of Administrative Law”, 1972
“Administrative law is not for sissies — so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture. There will be a quiz afterwards.”
Justice Antonin Scalia, “Judicial Deference to Administrative Interpretations of Law”, 1989
The administrative state has been around for a while, but the law has often been slow to keep up with its development. In 1942, one of the early administrative law academics, John Willis, wrote a letter to the editor of the Canadian Bar Review:
…I used to write articles attempting in my feeble way to inform the legal profession of the facts of modern government. That was an impertinent thing to do because they were even better informed on them than I was myself; but it was also, as I have discovered, a useless thing to do because the lawyer seems to have two sides to his mind, one of them taking note of what really happens in government which he uses for every day life, and the other unconsciously disregarding the facts of modern government which he uses when he comes to talk law. Despite my humble efforts and the efforts of wiser and older people than myself, the legal profession, and now I regret to say you yourself, persist in the belief that courts should disregard the facts of modern government and discourage as far as they are able the efforts of governments to render their policies effective.
Professor Willis was one of the first to closely examine law in the administrative state and the role of administrative tribunals, in a pioneering collection published in 1941 (Canadian Boards at Work). There was little interest in his project at the time and it was not until the early 1970s that the Law Reform Commission of Canada took up the challenge of explaining the roles of administrative tribunals. In its 1972-73 Annual Report, the Commission stated: “… that too little is known about the workings of administrative tribunals, that the practice of a tribunal cannot be understood without reference to its context and that the legal framework for a tribunal makes little sense without an understanding of its practices.” In that report the Law Commission concluded that to make any sense of the administrative process it needed more detailed knowledge of the practices and procedures of tribunals, as well as to review the way the courts had responded to tribunals.
The world of administrative law has changed significantly since the 1970s of course, but the one thing that has remained constant is its complexity and the need for an understanding of the context for each administrative tribunal or process. This leads to the question of what aspiring lawyers are taught about the administrative state and administrative law today. One of the leading textbooks for administrative law is Administrative Law in Context. The fourth edition is now available. This edition is edited by Paul Daly and Colleen Flood, both professors of law.
I am not familiar with earlier editions of this textbook, but the publisher states that this new edition contains “expanded content” on procedural fairness, the relationship between Indigenous peoples and administrative decision-makers, administrative agencies, and the intersection between public and private law. It also contains a new chapter on Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, and its impact on judicial review.
Allan Hutchison commented on an earlier edition of this textbook, that it “was as much a textbook as it was a casebook. As the title suggested, it sought to put the law side of the administrative process into a more practical and less abstract setting”. Professor Hutchison, as a newcomer to teaching administrative law, did note (quoting novelist Kate Atkinson) that administrative law is “all echoes and shadows, like looking into a box of fog.”
The administrative state is complex and one would expect that the law relating to the sprawling reach of the state would be equally complex. The authors of this textbook note that, in part, the “great heterogeneity” of administrative decision-making is what makes administrative law complex.
Administrative law also has a reputation among law students (and others) as being dull. The authors note this in the introduction and neatly counter that perspective:
… But administrative law is anything but dull — it is effervescent — and the tensions and puzzles that arise go to the very heart of different views on the part of judges about what amounts to good governance and how governments, the executive, those empowered to act on the part of government, and courts should function together. Part of the problem may be the name “administrative law,” which just does not convey something enthralling. Far better would be “the citizen and the state,” “law for ordinary people,” or “public justice,” as these descriptors convey the fact that while most people will never see the inside of a courtroom, they will be affected in a multitude of ways by decisions of administrative bodies of a seemingly endless variety.
This textbook provides a good overview of the principles of administrative law, including a useful discussion on the rule of law. There is also a useful chapter on the relatively new development of public-private partnerships, and the intersection of public law and the common law.
For current practitioners, where the book shines is in the chapter entitled “Fairness in Context: Achieving Fairness Through Access to Administrative Justice”. This chapter is written by Ontario Court of Appeal Justice Lorne Sossin and Angus Grant, of the Immigration and Refugee Board of Canada.
This is a largely practical chapter that focuses on access to justice and designing administrative law in a “human-centred” way. Historically, tribunal design discussions tended to be “top-down” exercises focused on the statutory purpose of a tribunal. Although I do believe that lawyers are human, it is amusing that when examining the law from the perspective of the participant in administrative law, lawyers refer to a “human-centred” approach. I prefer “participant-centred” or “user-centred”, but the term “human-centred design” has caught hold in the administrative law world.
Human-centered design incorporates the users’ experience as the central organizing principle, combined with “an experimental and iterative approach to developing new solutions.” Within their statutory mandates, tribunals have a great deal of scope to design processes that improve access to justice, without neglecting efficiency. The authors of this chapter suggest that tribunals whose applicants are “universally represented by legal counsel” may decide to maintain a legalistic approach to their rules and processes, in contrast to those tribunals serving largely self-represented applicants. I think this is too narrow a conception of accessibility. An important component of administrative justice is that the process be understandable to all people, whether they are lawyers or not, and whether they are participants in the process or not. Justice should never be opaque to a majority of the population.
The authors of this chapter also discuss the potential impact of the use of virtual hearings during the pandemic and how both the challenges and opportunities of virtual hearings have been brought into sharp focus. Without providing answers, the authors note that “multiple options for engaging with tribunals”, along with particular accommodations when required might be the best approach to minimizing barriers to access. In other words, there are no simple answers in administrative law.
This chapter in the textbook at least gets law students thinking about access to justice in practical ways. This is one of the strengths of the textbook. (For more discussion of administrative justice design, see Justice Sossin’s piece from 2017, “Designing Administrative Justice”.)
It is hard to know how easy to read this textbook is for law students coming to administrative law for the first time – but for those experienced in administrative law, it does serve as a useful overview of the state of administrative law.
What is a bit awkward in this book is the foreword, written by former Justice Marshall Rothstein. In it, he states that the fact that the standard of review has had to undergo major revisions by the Supreme Court every decade or so, “might make one think about the soundness of the doctrine”. Justice Rothstein continues to fight for the correctness standard as the only standard of judicial review (with limited exceptions), while acknowledging that he lost that argument about 13 years ago in Canada (Citizenship and Immigration) v. Khosa.
In the introduction, Professors Flood and Daly note that one constant in administrative law is the basic tension between the executive and the judicial branches of government. The authors note that judges have to “be respectful of democratic will” which requires them to respect the purpose for which administrative tribunals have been established as well as the fact that the tribunals’ functions have explicitly not be delegated to the courts for a reason.
In 1998, Justice Iacobucci stated: “… hopefully the era of antagonism between the courts and the administrative state is now at a close as courts understand that they are no longer the sole caretakers of truth and justice” (“Judicial Deference”, Address to the Conference of Ontario Boards and Agencies at Toronto, Ontario, November 19, 1998). In 2013, former Chief Justice Beverly McLachlin said that she believed that a new stage had been reached in the “saga” of courts, administrative tribunals and the rule of law:
We have not resolved all the problems. But we understand better how to go about resolving them. We understand better than we once did that what matters is fundamental fairness, and that what is fundamentally fair depends profoundly on the particular mandate and context of the tribunal in question. We understand better that the rule of law does not always call for one right answer in every case, but rather that for many decisions there is a range of reasonable alternatives. And most importantly, we understand that both tribunals and courts are essential to maintaining the rule of law in our complex, rapidly changing world.
This textbook is a good start for understanding the necessary complexity of administrative law. In the foreword, former Justice Rothstein does give “great credit” and gratitude to Professors Flood and Daly for their extraordinary time and effort devoted to the book – and on that score, one can certainly agree with him.
The last word should go to Albert Abel, who correctly foretold the need for administrative law to be constantly evolving, back in 1972:
An ever more crowded and complex world has entailed and will entail an ever more administered world. Dissatisfaction with the institutions of government is already disturbingly prevalent. It is urgent that the law about those institutions shape itself to fit the phenomena rather than keep struggling to make them fit a body of precepts.