Delegation of Powers
The complex nature of the modern state is such that elected representatives are not capable of passing laws to govern every situation. Many of their lawmaking powers, as well as the power to administer and implement the laws, are therefore delegated to administrative agencies. These agencies are involved in virtually every area of government activity and affect ordinary citizens in many ways, whether these citizens be home owners needing a building permit to erect a new room, injured employees seeking workers' compensation, farmers selling their produce, or owners of a trucking company wishing to transport goods between Vancouver and Montréal.
Government activity is controlled in various ways. First, according to the Canadian Constitution, elected politicians may pass any laws they please, provided such laws do not infringe upon the rights and liberties guaranteed by the CANADIAN CHARTER OF RIGHTS AND FREEDOMS and do not attempt to regulate legislative activity reserved for another level of government. Administrative authorities, as inferior bodies to whom the power to interpret and implement such laws is delegated, are also subject to these constitutional limitations. Second, delegating legislation defines the powers to be allocated to the agency (or minister) and sets forth the requirements to be met before the authority may act. Where entitlement to a government benefit depends upon the establishment of certain disputed facts or the interpretation of a statute, the applicable legislation will sometimes provide for a hearing before a group of officials (constituted as a board or tribunal) who will make the final decision. In some cases, a decision of the board or ADMINISTRATIVE TRIBUNAL can be reviewed by the courts if there is an error of law or a more serious error of fact. Third, certain COMMON LAW principles, derived originally from the courts of England and subsequently developed by Canadian courts, impose limits or obligations upon tribunals. The best example is the principle that administrative authorities must act in accordance with natural justice, which imposes certain procedural obligations that an authority must meet in exercising power. Common-law doctrine operates in tandem with any statutory legislation which covers the matters at issue.
If citizens feel that an administrative authority has made a decision affecting them that violates a constitutional, statutory or common-law principle, they may ask a court of law to review the actions of the authority. Canadian courts will only exercise their control over administrative authorities if the authority exceeds its jurisdiction, if it makes a decision which is patently unreasonable or if it follows improper or unfair procedures.
Concept of Jurisdiction
According to the concept of jurisdiction, administrative tribunals must act within the scope of the powers delegated to them by their enabling legislation. If these bodies take action without legal authority, they are said to have exceeded their jurisdiction and their action may be reversed (or quashed) by the courts. It is the role of the courts to interpret the enabling legislation and to determine whether it permits the action which the tribunal proposes. However, it is often difficult to determine whether a provision of a statute is one which confers jurisdiction on one at the heart of the tribunal's function, and courts exercise caution where a challenge to jurisdiction is made.
In some cases the power granted to administrative authorities is subject to express limits found in the enabling legislation. For example, the power given to a tribunal to regulate rents in apartment buildings of 10 units or more does not give it jurisdiction to regulate rents in buildings with only 4 units. A further example deals with the delegation of power by authorities. Courts have required that powers be exercised only by those to whom they are entrusted. Thus, members of a tribunal empowered to grant liquor licences to restaurants may not delegate this power to a staff member or an outside person. On the other hand, where ministers have the power to issue visas to foreign visitors, the vast number of applications and the nature of the task implies that subordinate officials may perform this duty in place of the minister.
The concept of jurisdiction does not address the merits of the decision made by government officials. Generally, it is not the function of the courts to intervene in the conduct of government. However, courts may intervene where an authority has abused its power or to ensure that the power has been properly exercised.. There are several examples of this. For example, in the case of the rent tribunal, a court will not permit the tribunal, as part of its power to regulate rents, to require the landlord to supply certain appliances. A decision must be made on the basis of relevant considerations and any discretion must be exercised within the context and perspective of the enabling statute. Reliance upon irrelevant considerations or the failure to consider relevant ones will enable a court to review the decision. Further, an authority cannot exercise its power for a purpose other than the purpose for which the power was intended. For example, if a minister had the power to close a hospital only for sanitary or safety reasons, he or she could not use this power for financial and budgetary reasons. Further, a tribunal may not bind itself or limit its discretion by making general rules that apply to every case. Each case must be decided on its own merits. In addition, there must be some evidence before a tribunal to justify decisions of fact. Finally a decision cannot be unreasonable to the extent that it is one which no reasonable person in the position of the decision maker would have made.
The third ground of judicial review of administrative action deals with procedure. Administrative agencies must follow proper procedure in arriving at their decisions. The various procedures stem from the basic requirement of the "right to be heard." In some cases a statute or regulation will set out the basic procedures that govern the process of decision making, such as what notice must be given of a hearing and to whom, the right to have counsel, the right to call evidence and to cross-examine witnesses. Where a statute establishes no procedures, common-law principles apply to ensure that all persons subjected to government action are treated fairly. These are the previously mentioned principles of "natural justice." They have 2 basic objectives: to ensure that every person whose interests are at risk is entitled to participate in the process before a decision is taken affecting their interests, whether by hearing or otherwise, and that any decision made by tribunal is impartial and not biased.
What constitutes procedural fairness will depend upon the nature of the power being exercised, the party affected, the consequences of the intended action and the practicalities of requiring time-consuming procedures. In serious cases affecting individuals, such as revoking a doctor's licence to practise medicine, procedures similar to those found in a court of law will be imposed. In other cases, such as the decision to terminate a lease in a public-subsidized apartment building, the courts have held that there is only a "duty to act fairly," which is satisfied if the tenant is informed of the complaints made against him or her and is provided with an opportunity to answer or to remedy them. In a few cases, such as a Cabinet decision on a petition from a tribunal that awarded a rate increase to a large private utility, the courts have held there is no duty of fairness to be followed because the decision maker, the Cabinet, was performing a legislative function of a political nature.
Rights of Appeal
The ability of the citizen to challenge administrative decisions in court depends upon the availability of an appeal or judicial review and the status of the individual who comes before the court. As far as the former is concerned, rights of appeal to the courts are often provided by legislation. In other situations, the historic and constitutional ability of the "superior" courts of law to review the actions of "inferior" administrative bodies must be relied upon. In the past, the procedure invoked to seek judicial review was by way of historic "prerogative" remedies, each with its own technical legal requirements. Today, in most provinces, statutory reforms have simplified these procedures into the single remedy of "judicial review," which encompasses all of the historical remedies yet provides the courts with the discretion not to intervene in administrative activity if relief is not justified. The superior courts in each province are responsible for granting these remedies where provincial administrative action is challenged. The decisions or actions of a federal administrative agency are reviewed by the Federal Court of Canada.
The second factor affecting the ability of individuals to obtain judicial review of administrative action is related to the status of the individual to sue. In many cases, the individual is directly affected by a particular decision, such as the termination of a disability pension, and this does not present a problem. In other cases, individuals challenging the constitutionality of legislation may seek to represent a broader public interest. Nevertheless the courts have generally permitted such citizens to proceed where they can show that a serious doubt exists about the validity of the legislation and where there is no other reasonable or effective means of bringing the issue before the courts.
In most cases, a citizen's remedy is restricted to having an administrative decision quashed. The court will, in some instances, grant the relief requested (eg, granting a licence where one is refused) or, as is more likely, will send the matter back to the administrative agency to be decided upon by a proper interpretation of a statute or of proper and relevant facts. In rare cases (eg, when the administrative action was not only illegal but was taken in bad faith) damages will be awarded. In RONCARELLI V DUPLESSIS the Supreme Court of Canada held the premier of Québec liable for $25 000 for wrongfully cancelling a liquor licence because he did not approve of the religious activity of the licence holder.
In some situations a statute will provide that the decision of the tribunal cannot be appealed to or reviewed by the courts. Often this occurs in fields of specialized expertise, such as labour relations, where it is felt the courts do not possess the experience or understanding necessary for making final decisions. Such restrictions on appeals have not prevented the courts from reviewing the decisions of these tribunals where there is an excess of jurisdiction. However, the courts have recognized that these tribunals may make decisions that the court, if it were deciding the issue, would not make, either because of its interpretation of the relevant statute or because of its view of the facts. In such cases, the Supreme Court of Canada has stated that the tribunal has acted outside its jurisdiction only if it has reached a decision that is patently unreasonable. Even where administrative agencies are not protected by such clauses, the courts have tended not to interfere in areas of specialized or technical expertise, such as health professions, securities, urban planning, nuclear energy and human rights.
Author J.G. COWAN Revised: THOMAS S. KUTTNER
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