The Language of Administrative Law III: Labelling

(This is the third in a series of posts. Read the first and second. The draft can be downloaded in its entirety here.)

Sometimes, in order to take the necessary much closer look, it is necessary to carefully peel off the labels applied to particular ‘forms’ of administrative decision-making. These labels are conclusory, functioning as a rough description of the reasons in favour of or against judicial intervention but obscuring the true nature of the underlying concept.

For instance, it sometimes still matters in Canadian law whether a power is exercised quasi-judicially.[1] A four-part test applies:

(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?

(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?

(3) Is the adversary process involved?

(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?[2]

But the test is hopelessly circular. It is merely a description of processes that historically have been considered “quasi-judicial”. It does nothing to say whether a particular, more rigorous, process should be followed in an individual case. An Irish author offers an uncannily similar verdict on a the test for identifying “judicial” functions in his jurisdiction: “this definition provided only a descriptive summary…[and]…did not offer a suitably prescriptive analysis of the core concepts of the judicial function…[I]t owes more to historical happenstance than conceptual coherence”.[3]

Another example is provided by “legislative” decisions to which no duty of procedural fairness applies.[4] The label, however, is not self-applying. As Estey J. tellingly put it, refusing to apply procedural safeguards to a “legislative” decision in Attorney General of Canada v. Inuit Tapirisat, “[i]t is always a question of construing the statutory scheme as a whole in order to see to what degree, if any, the legislator intended the principle [of procedural fairness] to apply”.[5] There, consumers involved in a telecommunications rate-setting process appealed the decision to the federal cabinet. Cabinet affirmed the decision, but accorded no participatory rights to the consumers. Although Estey J. described the rate-setting decision as “legislative action in its purest form”,[6] closer analysis reveals that the “legislative” label obscures the normative heavy lifting performed by a careful contextual analysis. This was a unique procedure where “the executive branch has been assigned a function performable in the past by the Legislature itself”.[7] Because of the lack of “practicality” of hearing all parties,[8] the absence of “standards or guidelines in the exercise of its rate review function” were set out in legislation[9] and the fact that the members of cabinet were asked “to respond to the political, economic and social concerns of the moment”[10], according procedural rights would have been inappropriate.[11] One can argue about the wisdom of Estey J.’s conclusion, but once the “legislative” label is removed, it is clear that the case turned on the normative considerations canvassed in his contextual analysis.

The same can be said of another category of decision that is excluded from procedural fairness protections, that of “commercial” decisions. The leading Canadian case is Irving Shipbuilding Inc. v. Canada (Attorney General).[12] Here, sub-contractors to an unsuccessful bidder on a government contract sought to impugn the fairness of the procedures employed. Evans J.A. observed that the context was “essentially commercial” and that “it will normally be inappropriate to import into a predominantly commercial relationship, governed by contract, a public law duty developed in the context of the performance of governmental functions pursuant to powers derived solely from statute”.[13] Addition of the qualifier “normally” indicates that the formal labelling of the decision as “commercial” was not determinative. Indeed, Evans J.A. mentioned six reasons why permitting the sub-contractor to raise a procedural fairness argument would be inappropriate. For instance, it would raise “the alarming possibility of a cascading array of potential procedural rights holders”[14] and potentially compromise “the efficiency of the tendering process”.[15] Moreover, Evans J.A. refused to rule out the possibility of judicial review to enforce procedural fairness at the instance of a sub-contractor “where the misconduct of government officials was so egregious that the public interest in maintaining the essential integrity of the procurement process was engaged”.[16] Running through this close contextual analysis is an appreciation of the normative underpinnings of judicial review: a concern to protect the rule of law while also safeguarding the efficiency of public administration.[17]

Labels invite formalistic thinking which in turn invites confusion:

Formalism is formal in that it requires judges to operate with categories and distinctions that determine results without the judges having to deploy the substantive arguments that underpin the categories and distinctions. Since those categories and distinctions must take on a life of their own in order to operate in this detached way, they are capable of determining results that contradict the very arguments for these categories and distinctions.[18]

Lawyers will more clearly understand administrative law if labels such as “quasi-judicial”, “legislative” and “commercial” are removed to permit focus on the underlying normative considerations.

[1] For example, in determining the scope of operation of Ontario’s Statutory Powers Procedure Act, or Quebec’s Charter of Rights and Freedoms, which in s. 23 guarantees administrative independence.

[2] Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, at p. 504.

[3] Eoin Carolan, “Separation of Powers and Administrative Governance” in Eoin Carolan and Oran Doyle eds., The Irish Constitution: Governance and Values (Thomson Roundhall, Dublin, 2008), p. 195, at p. 220.

[4] See e.g. Bates v. Lord Hailsham, [1972] 3 All E.R. 1019, at p. 1024.

[5] [1980] 2 S.C.R. 735, at p. 755.

[6] [1980] 2 S.C.R. 735, at p. 754.

[7] [1980] 2 S.C.R. 735, at p. 758.

[8] [1980] 2 S.C.R. 735, at p. 754.

[9] [1980] 2 S.C.R. 735, at p. 753.

[10] [1980] 2 S.C.R. 735, at p. 755

[11] As I have written:

There is no neat box marked “legislative decisions”. Rather, “legislative” is a label applied after-the-fact, to a conclusion reached on substantive grounds that a procedural fairness claim is inappropriate in a particular case.

“The Policy/Operational Distinction – a View from Administrative Law” (2014), 67 S.C.L.R. (2d) 17, at p. 27.

[12] [2010] 2 F.C.R. 488.

[13] Irving Shipbuilding, at para. 46. Emphasis added.

[14] Irving Shipbuilding, at para. 50.

[15] Irving Shipbuilding, at para. 52.

[16] Irving Shipbuilding, at para. 61.

[17] See further Mark Elliott, “Judicial Review’s Scope, Foundations and Purposes: Joining the Dots”, [2012] N.Z.L.R. 75.

[18] David Dyzenhaus, “Constituting the Rule of Law: Fundamental Values in Administrative Law” (2002), 27 Queens L.J. 445, 450.

This content has been updated on August 18, 2015 at 11:27.