Delegation of Powers

In a complex modern state, elected representatives are not capable of passing laws to govern every situation. Therefore, provincial and federal governments delegate many of their law-making powers, as well as the power to administer and implement the laws, to administrative agencies. These agencies are involved in virtually every area of government activity and affect ordinary citizens in many ways. Among other things, administrative agencies oversee building permits, workers’ compensation, farming regulation, interprovincial trade (see Canadian Free Trade Agreement), and various administrative tribunals.

Administrative law controls government activity in various ways. First, according to the Constitution of Canada, 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 (see Peace, Order and Good Government). Administrative authorities, as inferior bodies with only the authority that has been given to them, are also subject to these constitutional limitations.

Second, delegating legislation defines the powers given to the agency (or minister) and outlines rules for exercising those powers. Where administrative action depends on resolving disputed facts or interpreting a statute, the legislation will sometimes require a hearing before a board or administrative tribunal. In some cases, the board or tribunal’s decision may be reviewed by the courts if there is an error of law or an unreasonable finding of fact.

Third, certain common-law principles impose limits or obligations upon tribunals. The best example is the principle that administrative authorities must act in accordance with natural justice, which includes certain procedural rules. Common-law doctrine operates in tandem with any laws relating to the issues being considered.

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 generally defer to administrative authorities’ expertise. Courts only exercise oversight if the authority exceeds its jurisdiction, if it follows improper or unfair procedures, if it makes a decision on law that is incorrect, or if it makes a decision on facts that is unreasonable.

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. Courts may reverse (or quash) decisions made outside an administrative body’s jurisdiction. Courts interpret the enabling legislation and determine whether it permits the tribunal’s actions. However, statutes are not always clear, and where the question goes to the heart of the tribunal’s function, courts will exercise caution where a challenge to jurisdiction is made.

In some cases, the enabling legislation expressly limits the power granted to an administrative authority. For example, a tribunal empowered to regulate rents in apartment buildings of 10 units or more does not have jurisdiction to regulate rents in buildings with only 4 units. Further, courts require that powers be exercised only by those to whom they are given. So, for example, members of a tribunal that grants liquor licences to restaurants may not delegate this power to a staff member or an outside person.

On the other hand, while government ​cabinet ministers may have specific powers granted by legislation, often the volume of work would be impossible for one person to perform. Thus, ministers delegate their authority to subordinate officials. For example, a government minister may have the power to issue visas to foreign visitors, but the high number of applications and the nature of the task requires subordinate officials to perform the duty in place of the minister.

Reviewing jurisdiction does not address the merits of a government official’s decision. Generally, courts are not meant to intervene in government conduct (see Distribution of Powers). However, courts may step in where an authority has abused its power or to ensure that the power has been properly exercised. A decision must be made based on relevant considerations and any discretion must be exercised within the meaning of the enabling statute. If a decision maker relies on irrelevant information or fails to consider relevant information, courts may 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 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. There must be some evidence before a tribunal to justify decisions of fact. A decision cannot be unreasonable to the extent that it is one that no reasonable person in the position of the decision maker would have made. Also, provincial governments cannot remove the courts’ ability to review administrative bodies’ jurisdiction.

Procedural Fairness

The third ground of judicial review of administrative action deals with procedural fairness. Administrative agencies must follow proper procedure in arriving at their decisions. 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 two basic objectives: to ensure that every person whose interests are at risk is entitled to participate in the process before a decision is taken, whether by hearing or otherwise; and, that any decision made by tribunal is impartial and not biased. Further, the Supreme Court of Canada has held that procedural fairness incorporates the principles of fundamental justice in section 7 of the Charter.

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, 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 order for the rules of procedural fairness to apply, the nature of the decision must be administrative. This means that decisions that are legislative or broadly based on policy decisions will not need to be procedurally fair. The decision under review must also be the result of an exercise of the administrative body’s power given to it by its enabling statute, and that decision must affect the claimant’s rights, privileges or interests. Lastly, these rules are not absolute. There may be policy reasons such as security, efficiency or emergency that will diminish the need for procedural fairness.

The amount of procedural fairness required for a given situation will therefore be contextual. The more a process resembles a court hearing the more an individual has a right to procedural fairness. If the statute sets out rights of appeal, less procedural fairness is required than if the decision is final. If the decision affects a person’s Charter or human rights, or invokes the government’s international obligations, courts will generally require more procedural fairness. If the subject of the process has legitimate expectations of procedural fairness, courts will also require a higher degree of fairness. Lastly, the choices of the agency itself will be relevant in determining whether the duty of fairness has been discharged. To that effect, where an agency or decision maker can produce written reasons that show consideration of formal policies and guidelines and the specific facts of a case, courts will be much more likely to find the decision was made fairly.

Courts may find that the duty of procedural fairness has been breached if the administrator’s actions were not procedurally fair, if there was an unnecessary delay that prevented the affected person from participating in the process, if the decision maker has shown bias, or if there was undue interference in the decision-making process. If a court finds a breach of the duty of fairness, it may cancel the decision and send it back to be made again properly or stay the proceedings in the case of prejudicial delay.

Rights of Appeal – The Standard of Review

A citizen’s ability 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. Rights of appeal to the courts are often provided by legislation. In other situations, parties may rely on the historic and constitutional ability of the “superior” courts of law to review the actions of “inferior” administrative bodies (see Court System of Canada). In the past, judicial review involved 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. 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. Judicial review can be of any administrative decision. In 2014, for example, a lawyer sued Prime Minister Stephen Harper and the Government of Canada for appointing a judge to the Supreme Court of Canada who was not properly qualified under the Constitution.

The second factor affecting the ability of individuals to obtain judicial review of administrative action is related to the status of the individual who is suing. 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 (e.g., 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 (e.g., 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 Quebec 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 courts may 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 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.

When courts consider how much deference they must give to an administrative decision maker, this is called the standard of review. Courts will generally consider whether a decision was reasonable or correct, depending on the circumstances. Previous cases, or the enabling legislation, may establish a standard of review. As described above, the decision does not have to match the court’s decision, but it must be properly made; usually reasonableness will be the standard on questions of fact, discretion, policy, or mixed fact and law. The rationale for this is that the administrative decision makers are closer to the evidence and have more expertise than the courts. In determining the standard of review, courts will take a “pragmatic and functional approach.” Courts will consider decisions on the standard of correctness — the decision of the administrative body must match the court’s own findings — on matters relating to jurisdiction, on the constitutional division of powers, or on issues that are of “central importance to the legal system.”

Administrative Law and Indigenous Peoples

When determining to what extent the government must consult with Indigenous peoples — i.e., the content of the duty to consult — courts will look at whether the administrative body was reasonable. However, courts may apply the standard of correctness when looking at the seriousness of the infringing behaviour.

The government may also rely on administrative bodies or processes to discharge its duty to consult. However, in doing so, administrative bodies must act both in accordance with the constitutional duty to consult Indigenous peoples and the principles of administrative law. In other words, the process must be fair and meaningful, it must consider and evaluate the impact on Indigenous rights, and it can be subject to judicial review.