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Special Report on Administrative Law

The Basics

Reprinted with the permission of LawNow magazine http://www.lawnow.org

Connie L. Mah
What is administrative law? Administrative law deals with complaints respecting government action that adversely affects an individual. Thus, administrative law involves determining the legality of government actions. There is a two-fold analysis: the legality of the specific law itself and the legality of particular acts purportedly authorized by the specific law. Governments cannot perform any act. Governments act through government officials who must act within certain limitations. A governments power to act comes from legislation or royal prerogative. Thus, government officials must act within the parameters (or scope) of such legislation or royal prerogative which give their actions lawful authority. These are lawful actions. If government officials act outside the scope of their lawful authority and individuals are affected by these acts, then the principles of administrative law provide individuals with the ability to seek judicial review of the administrative action and possible remedies for the wrongful acts.

General Principles of Administrative Law


Establishing the Constitutional Validity of Legislation

In the administrative law context, the first step is to determine the legal validity or authority of the action by the government official. (In this article, administrator, delegate, and official are all used interchangeably.) This involves looking at the basis of the legal authority to act, that is, the specific law that gives that administrator the lawful authority to act.
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Special Report on Administrative Law


Constitutional law essentially deals with who has the ability to make laws. Administrative law deals with the government officials who have been empowered by these laws to act. Therefore, there is a close relationship between constitutional and administrative law. Specifically, if the law that empowered the government official to act was itself found to be unconstitutional, and therefore invalid, Constitutional law essentially deals with who has the ability to make then any actions by the government official under laws. Administrative law deals with the government officials who that law will also be invalid. have been empowered by these laws to act. Therefore, there is a close Consequently, this may result relationship between constitutional and administrative law. in a legal remedy for an individual adversely affected by this action. Determining the Nature and Scope of the Power to Act The second step in administrative law is to determine the nature and scope of the powers conferred to the government official by the specific legislation. Through legislation, the Parliament of Canada and provincial legislatures delegate specific powers as well as duties to government officials to enable them to act on behalf of these governments. Delegation of Powers Delegation of powers from the legislators to administrators is necessary given the sheer magnitude of the business of government. Due to the volume of decisions required, it is not possible that all issues be decided by Parliament or the provincial legislatures in Canada. Another important reason for the delegation of powers is that laws by their very nature need to be broad since the wording of laws cannot encompass all specific and often changing circumstances that occur. Thus, the application of the law may require some aspect of discretion in order to apply to specific circumstances, and the laws themselves must set out criteria for the application of such discretion to ensure fairness and consistency. Almost all laws passed by Parliament or the provincial legislatures identify specific powers and duties for various government entities or officials such as a cabinet, a specific minister or civil servant, or a judge. Given the grave importance of the delegation of powers, both Parliament and the provincial legislatures have developed control guidelines for their own delegation of powers to administrators. Jurisdiction and Ultra Vires When there is a complaint regarding an act of a government official, the act is referred to as the impugned act. Where there is a complaint, the official will need to show that some legislation (also called a statutory provision) authorized him or her to do the act;
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Special Report on Administrative Law


he or she acted precisely within the strict powers and duties set out in the statutory provision (this is called the jurisdiction conferred by the statutory provision). If the official acted outside of or beyond the parameters set out by the statutory provision, then the act is considered ultra vires. This Given the grave importance of the delegation of powers, both means the act was outside his or her jurisdiction or without Parliament and the provincial legislatures have developed control guidelines for their own delegation of powers to administrators. lawful authority. This may result in a remedy available for an individual adversely affected by the ultra vires act. Consequently, the cornerstone of administrative law is the importance of the examination of the specific legislation as it applies to a specific act of a specific official in order to determine the lawful authority of the impugned act. A close examination of the specific legislation is essential to the administrative law process and often involves interpretation of the meaning of the legislation (this is called statutory interpretation). Statutory interpretation and construction is governed by legal rules to determine what Parliament or the legislatures meant when enacting that legislation. Characterization of Powers and Sub-Delegation of Powers Characterization of the function of the legislative powers enables the determination of the scope of these powers and the duties they grant, and the procedures the delegate is required to follow to lawfully exercise these powers. In turn, this determines the available remedies in court if the impugned act is found to be unlawful. Powers can be characterized as legislative; judicial (or quasi-judicial); or administrative (or executive). If the delegated power is legislative or judicial in nature, the general rule in administrative law is that such powers must be exercised by the specific person identified in the legislation. Such a person (government official) is prohibited from sub-delegating these powers and duties to another person. By contrast, powers characterized as administrative can be sub-delegated. Characterization of Duties and Discretionary Powers Another important principle of administrative law distinguishes between delegated powers that are duties that the delegate must perform and delegated powers that are discretionary in nature. Some powers are broadly set out in the legislation with some discretionary aspects to enable the delegate to apply the broad principle to specific circumstances. The rationale behind such discretionary powers includes the difficulty of providing a general rule that would apply to all circumstances; the difficulty in anticipating all
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Special Report on Administrative Law


possible factors for all situations; and the difficulty in ascribing weight of all factors in a broad legislation. Discretionary powers generally constitute either the delegate being authorized to exercise discretion on an ad hoc basis or the delegate being authorized to enact subordinate legislation to govern specific types of cases. Examples of subordinate legislation include regulations, codes, and bylaws. In administrative law, it is important to determine the scope of discretion of delegates in order to examine the validity of their acts, especially given that discretionary powers are generally granted within specific limits.

Forums and Remedies

Administrative Boards or Tribunals

Federal and provincial laws have expressly created administrative boards or tribunals as decision-making bodies for a variety of areas. The underlying rationale is to make the governmental decision-making process more efficient and accessible to the general public. The checks and balances for these decision-making bodies are provided by the provincial superior courts who oversee them by providing judicial review of the administrative actions of the boards and tribunals. The Role of the Superior Courts The superior courts have the inherent power of review of administrative actions. For example, in Alberta, the superior court is the Court of Queens Bench. By applying the rules of statutory interpretation If the delegated power is legislative or judicial in nature, the general and construction, these rule in administrative law is that such powers must be exercised by the courts determine which impugned acts are ultra specific person identified in the legislation. vires. These superior courts have historically also had supervisory powers over lower courts and tribunals. Judicial review of an act by an administrator is limited to determining whether delegates exercised their powers within the strict parameters as set out by the law that conferred the power and duties to act. These are essentially characterized as jurisdictional questions and therefore involve determination of whether the impugned act is ultra vires. Therefore, these courts may intervene if they conclude any of the following jurisdictional problems were involved in the impugned act: substantive ultra vires (the act was not authorized by the legislation); the delegate exercised a discretion for an improper purpose, with malice or bad faith, or with reference to irrelevant considerations; the delegate failed to consider relevant matters; the delegate made serious procedural errors (that is, breached principles of natural justice or the duty to be fair); or
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Special Report on Administrative Law


the delegate made an error of law. Administrative Remedies In reviewing the legality of an impugned act, if a court determines that the act was ultra vires, it has the following remedies available: declarations; injunctions; damages; statutory appeals to a court or another administrative body; or prerogative remedies (certiorari, prohibition, mandamus, habeas corpus and quo warranto). Privative Clauses The inherent ability of the superior courts to review the legality of administrative action can be circumvented by Parliament (or the provincial legislatures) by passing legislation that includes privative clauses. Such clauses essentially state that the courts do not have the power to judicially review specific actions by delegates. Specifically, such clauses in legislation may expressly state that the administrators action shall not be reviewed in any court, or alternatively, such clauses could limit the type of remedies available to the courts under the process of judicial review.
Connie L. Mah is a lawyer practising in Edmonton, Alberta.

January/February 2007