Administrative Law in Quebec and Canada
I spoke last month on this topic at a conference organized by the National Judicial Institute. Some of you may be interested in the following, slightly amended synopsis of my remarks. I’ll have more to say on the last idea soon, but suffice it to say that there is a striking contrast between Rothstein J.’s reasons in OPG and Pecore….
Quebec writers sometimes claim that there is a « spécificité québécoise » in public law matters. If there is a unique Quebec approach to public law, however, it is more likely to be found in scholarship (Robert Leckey, “Territoriality in Administrative Law” (2004), 54 UTLJ 347) than in the decisions of the courts.
Rules of public law are common to Quebec and the common-law provinces (Hinse v. Canada (AG), 2015 SCC 35, at para. 24). As Beetz J. observed, “in Anglo-Canadian law, administrative law does not constitute a complete and independent system, separate from the ordinary law and administered by specialized courts” (AG Quebec v. Labrecque,  2 SCR 1057, 1081-2).
Nonetheless, Quebec administrative law is rarely taken into account by courts in the common-law provinces or by Anglophone commentators (cf. the enthusiastic reception of Syndicat des travailleuses et travailleurs de ADF – CSN c. Syndicat des employés de Au Dragon forgé inc., 2013 QCCA 793 in Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59; David Mullan: “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action – the Top Fifteen!” (2013), 42 Advocates’ Quarterly 1).
The mostly siloed state of Canadian administrative law is unfortunate. There are at least three areas in which decisions and scholarship from one of the two solitudes can illuminate administrative law for members of the other.
The most important, in my view, is tribunal independence. Canadian courts have squashed the suggestion that there ought to be robust judicial protection for the independence of administrative tribunals (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch),  2 SCR 781; Saskatchewan Federation of Labour v Government of Saskatchewan, 2013 SKCA 61).
However, any fear that judicial enforcement of norms of independence would compromise the freedom of the executive branch of government can be dispelled by reference to the Quebec experience, in which tribunal independence is treated as a flexible norm that applies differently depending on context (Québec (PG) c. Barreau de Montréal,  RJQ 2058 (CA); Association des juges administratifs de la Commission des lésions professionnelles c. Québec (PG), 2013 QCCA 1690).
As to internal administrative structures a greater degree of dialogue between the civil-law province and its common-law counterparts would be worthwhile.
In my view, the Tribunal administratif du Québec and the Loi sur la justice administrative that constitutes the TAQ and sets out procedural guarantees are of limited novelty and relevance (cf. Transportation Appeal Tribunal of Canada Act, SC 2001, c 29; Statutory Powers Procedure Act, RSO 1990, c S.22). Although the TAQ is certainly an important institution, it does not monopolize administrative appeal routes, because many others continue to exist in, for example, the workplace safety and compensation areas. Moreover, other provinces are experimenting with structures that are at least or perhaps more innovative than Quebec’s (e.g. Adjudicative Tribunals Accountability, Governance and Appointments Act, S.O. 2009, c. 33; Civil Dispute Resolution Tribunal Act, S.B.C. 2012, c. 25).
Novelty is found rather in the move to vest the Court of Quebec, a provincial court, with powers of judicial review that form part of the inherent jurisdiction of the superior courts (Proprio Direct inc. c. Pigeon, 2006 QCCA 978, aff’d though not on this point,  2 SCR 195). The roles that can properly be ascribed to administrative appeals bodies is a live question elsewhere in Canada (see e.g. Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799), though here I think Quebec could learn from the rest of Canada rather than the other way around (Paul Daly, « Les appels administratifs au Canada » (2015), 93 Revue du Barreau canadien 71).
Lastly, the nature of Canadian administrative law is in some ways a ‘top-down’, principled enterprise that resembles civilian modes of thinking more than it does the bottom-up incrementalism of the common law (McGinty v Western Australia (1996) 186 CLR 140).
In Dunsmuir v. New Brunswick,  1 SCR 190, at para. 27, administrative law doctrine was said to be given its shape in a crucible formed by the competing principles of the rule of law and democracy. And more recently a unanimous Supreme Court rewrote the rules of tribunal participation on judicial review by explicit reference to first principles: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 (cf. Pecore v. Pecore,  1 SCR 795. Here, common lawyers can perhaps learn from their civilian kindred spirits about how best to organize their thoughts, especially at a moment in which Canadian administrative law seems headed for the latest of its regular overhauls.
This content has been updated on February 26, 2016 at 15:09.