L'Excellence dans la prise de decision administrative: evolution d'hier a demain/Excellence in Administrative Decision-Making: Evolution from Yesterday to Tomorrow.

• Author: De Montigny, Yves
• Position: Canada

1. INTRODUCTION

   Once in a while, it is timely to pull back from the narrow questions of administrative law arising in particular cases, and to reflect more broadly on administrative justice in Canada. As is the case in many other countries, issues of vital importance--from deportation; human rights claims; and major resource development projects, such as pipelines; to the constitutional validity of legislation--are now decided by a host of administrative agencies and tribunals across the country. In Canada, unlike some of our counterparts in the Commonwealth (UK), these administrative agencies and tribunals are considered to be a part of the executive branch, and there is a growing awareness that adjudicative tribunals in particular play a unique role in our constitutional structure. As recent reforms have centralized administrative decision-making and increased the independence of some of these bodies, some question whether they in fact form a fourth branch of government, straddling the divide between the judiciary and executive branch. (1)

   As I will discuss in a brief overview of the history of administrative bodies in Canada, the idea of an administrative justice system, rather than a multiplicity of isolated agencies and tribunals, has been a guiding force in the reform of administrative justice in Canada for a few decades now. Studies beginning in the 1970s have pushed us to reflect on common solutions to common challenges in administrative decision-making, in matters such as independence, efficiency, and procedural fairness. The Council of Canadian Administrative Tribunals, amongst other similar organizations, has played a significant role in this regard by promoting the sharing of best practices and by contributing to the development of a strong administrative justice system. (2)

   In this article, I will briefly canvass the history of administrative justice in Canada, and discuss current challenges for administrative justice, including tribunal independence, efficiency and accessibility in an era of fiscal restraint; as well as the judicialization of tribunal procedure and complex constitutional questions.

2. HISTORICAL DEVELOPMENT OF ADMINISTRATIVE LAW

   1. Advent of the Welfare State

      In the early days of Confederation, the main preoccupations of Parliament were the extension and protection of the frontier and the development of a national economy. There were only "a handful of government offices in Ottawa as well as a number of officials scattered throughout the country." (3) Indeed, until the end of the 19th century, government played a very narrow role in people's daily life. Apart from overseeing the post, the police, and the army during times of war, it only provided limited services to the population. (4)

      However, in the wake of World War II, Canadian politicians and economists, who still had a bitter taste left by the great economic crisis of 1929-39, thought that a return to market laissez-faire would again lead to misery and an unstable social climate. In this context, the government started to play a central role in the country's economy by implementing various social measures. With the advent of the welfare state, the significant complexification of government's role induced a surge of regulatory and administrative action. (5)

      This interventionism extended progressively to virtually all areas of society's activities. As the Supreme Court noted in ATCO Gas and Pipelines Ltd v Alberta (Energy and Utilities Board): "Few areas of our lives are now untouched by regulation. Telephone, rail, airline, trucking, foreign investment, insurance, capital markets, broadcasting licences and content, banking, food, drug and safety standards, are just a few of the objects of public regulations in Canada." (6)

      Government can now be described as "a machine of overwhelming complexity." (7) Elected officials neither have the time nor the required expertise to implement all necessary governmental policies. (8) Government has consequently tried "to concentrate on long-range planning and creation of macro-policies to implement long-range goals," (9) thus leaving to administrative agencies the task to monitor all the specific policies and to implement them at the local level. (10)

      During the past century, this phenomenon took on enormous proportions; Canada, as most western democracies, moved from a traditional rule of law model of governance to "governance in the modern regulatory state." (11)

   2. Intensification of Regulation

      From 1945 to 1980, there has been an immense increase in regulation, both in the intensity of the administration of the existing programs and in the creation of new powers. (12) A first wave of new regulatory powers occurred from the end of World War II to the mid-1950s and gave rise to "the compulsory marketing of wheat through the Wheat Board, collective bargaining requirements..., municipal planning powers, and protections of human rights." (13) New welfare programs were developed, such as the Family Allowances Plan (1946) and the Old Age Security Pension (1952). (14)

      A second wave of new regulatory powers intervened from the late 1960s to the mid-1970s and included regulations concerning occupational health and safety, consumer protection, environmental protection, restriction on foreign investment, rent control, the national energy policy, and the control of wages and prices. (15) The Canada Pension Plan also came into effect in 1965. (16) Professor Michael Taggart argued that regulation, as delegated legislation, "often has more impact on the lives of ordinary citizens than do most full-blown Acts of Parliament." (17)

   3. Growth of the Number of Administrative Agencies

      Administrative law has existed in one form or another for centuries in England. It is only with the birth of so many Canadian agencies during the last half of the 20th century that it has really obtained its own identity in Canada. (18) As its reach expanded, it became logistically impossible for the government to centrally administer all of its programs. (19) This state of affairs led to the proliferation of administrative agencies (20) that have since pervaded the structure of the government and become a permanent and prominent part of the public sector. Their importance is such that a study paper prepared in 1982 for the Law Reform Commission of Canada affirmed that "they can fairly claim a place in the unwritten part of our constitution." (21) However, this surge of administrative agencies is arguably more a pragmatic response to emerging problems triggered by the constantly increasing number and complexity of matters dealt with by the government than a planned constitutional development. (22)

      At the federal level, most administrative agencies have been created after 1945. (23) Unlike most of the agencies created during the First World War, many of the agencies created during the Second World War continued to operate after the war's end. (24) Moreover, before 1945, many of the federal regulatory functions were assumed by bodies dissimilar to the current administrative tribunals. In the broadcasting area, for example, the licensing operations were vested with the Canadian Broadcasting Corporation and the responsible minister. (25) A notable exception is the Board of Railway Commissioners, which was created in 1903. Its decisions were already judicially reviewable, just as they are today, on questions of law or jurisdiction. (26) The unemployment insurance scheme was also fairly developed. (27)

      In addition to the increased number of administrative tribunals, it is also striking to see how matters dealt with by administrative bodies in 1945 now have greater importance in our modern society. For instance, at the federal level, the telecommunication and broadcasting areas have experienced a spectacular economic and political growth. (28)

      With the proliferation of administrative agencies, "many people [began] to ask if what we [had] planted [was] a garden or a jungle." (29)

   4. Change in Procedure

      Another significant difference between the early administrative agencies and the current ones is the scope for participation by the people concerned by an administrative decision, which is now far more accepted, both at the federal and the provincial level, than it used to be in 1945. For example, the right to be heard prior to land expropriation is now well recognized, and the affected people are not merely limited to accept compensation. Procedural rights have also been granted to inmates, conditionally released offenders, and beneficiaries of social benefits. (30) In the same vein, participation of the general public to the regulatory process, in areas such as urbanism, has been substantially developed as well. (31)

   5. Judicial Review

      There are competing views about the attitude of the judiciary vis-a-vis the early administrative agencies. Professor David Mullan affirms that, until the 1940s, judicial courts sporadically revised administrative decisions, and usually in the context of a statutory appeal. (32) In the same line of thought, the courts decided only a few cases involving regulation during the 1930s and they were reluctant to interfere with administrative bodies' powers, according to Professor Risk. (33) Conversely, in 1935, Professor Willis was of the opinion that the judiciary had been "uncompromisingly hostile to the executive," as they felt that administrative decision-making undermined the rule of law. (34) In 1932, the Chief Justice of Ontario, Sir William Mulock, protested against legislation that leaves "the decision of [the subject's] legal rights at the mercy of any non-judicial body, often ignorant of the law, bound by no law, free to disregard the evidence and the law, and practically at its own will, to dispose finally of his rights." (35)

      However, it seems uncontested that, between 1950 and 1975, with the growth of the number of administrative tribunals, the courts became concerned about preserving...