The Ages of Administrative Law: The Age of Invention

I have posted “The Ages of Administrative Law“, my contribution to this year’s Public Law Conference, to SSRN. Here is the first substantive part. Thoughts and comments very welcome.

In his Hamlyn Lectures, Professor Paul Craig has elegantly described how the administrative state existed in embryonic form before even the Glorious Revolution.[1] In this section, I will make the case that the same is true of Canada, underscoring the ad hocery of the pre-modern era and the gradual development of the institutional forms which later became central to the administrative state.[2] As in England, the Age of Invention saw the emergence of the basic forms of public administration.[3] In addition, the basic form of judicial review of administrative action developed in this era, especially in the 17^th century, “that great constitutional watershed of our institutions, [which] gave form to the institution of judicial review as it gave form to so much else in our polity”.[4]

The Structure of the State

The dominant theory of Canadian economic development is that the country[5] was built on the production and export of various ‘staples’. From the forests, lakes and rivers of the North intrepid explorers first brought forth beaver pelts which were exported via Montreal and Quebec City to European markets, where they were used in the fabrication of expensive hats for the fashionistas of London, Paris and beyond. This model of economic development is the staple theory. First, fur and later, grain (especially wheat) and various other natural resources, such as timber, were exploited in the interior and distributed by merchants on the coast. This was the backbone of the Canadian economy, later supplemented by industrial production in the east. It is therefore unsurprising that public officials took a keen interest in regulating production of raw materials and facilitating immigration to populate the arable lands of the interior.

I use the term “public officials” somewhat loosely. As Europeans began to establish a foothold in North America, there was no state as such. Of course, there were sophisticated Indigenous governance structures, both within and across communities. But the early European visitors and settlers did not create a Weberian-style state with a monopoly on the use of physical force. Rather, their goal was to exploit the resources of the continent and establish a territorial foothold for exploration and settlement. Notice, too, that the involvement of European states at this point was indirect, as much of the initial European incursion into North America was effected by private companies, such as the Hudson’s Bay Company and the Compagnie des cents associés, and individuals undertaking voyages with only grudging or halfhearted Royal sanction.

As trade became more lucrative, however, establishing a state, or at least a state-like structure, became a priority for the European powers. Britain and France were drawn into a conflict in North America whose knock-on effects precipitated Royal regulation of the fur trade from Paris, shutting down trading to prevent declines in the price of raw materials.[6] This was far from the last attempt to regulate the fur trade. In the early days of British rule in Canada, for instance, Governor Murray forbade trade with Indigenous peoples in the interior: commerce was only to be conducted at nominated trading stations; licenses were to be granted for these purposes; traders would have to give a bond worth double the goods they intended to trade; and traders would also have to disclose the weapons they proposed to bring with them.[7] By the end of the century, though, the system of licenses for trade in the interior was “swept away entirely by ordinance”.[8]

Filling Canada with Europeans was a pressing 19^th century priority, but politically fraught, as immigration imposed local costs on the ports which had to cope with waves of new arrivals, who often alighted with severe illness. In 1832, a controversial head tax was introduced.[9] This legislation created Commissioners for the emigrant societies of Montreal and Quebec, and hospitals, and funded their operation by the imposition of a poll tax on new arrivals. The Commissioners were given a statutory direction to use the funds to provide care on site and to send immigrants to areas of the province where they were needed. Interestingly, the legislation also created a private right of action allowing individuals to keep 50% of penalties imposed on ship captains and pilots who failed to disburse sums appropriately. Later in the century, after Confederation, when westward expansion was a national priority, the Dominion Lands Act 1872 was designed to facilitate immigration: the legislation “provided that a settler could lay claim to a quarter section of 160 acres on payment of a small registration fee [and] could acquire title to his homestead in three years, provided his settlement duties were fulfilled”.[10]

Canada’s first general regulatory agency was the Board of Railway Commissioners created by the Railway Act 1903 (though the idea had been around several decades prior, as railways had long been subject to regulatory oversight[11]). Members were appointed for 10-year terms subject to good behaviour.[12] The Board was vested with broad jurisdiction to make orders and regulations in relation to the speed of trains; the use of steam whistles within cities, towns and villages; employee safety in moving from car to car; shelter for on-duty employees; the prevention of fires; and all sorts of railroad property with a view to providing “means for the due protection of property, the employees of the company, and the public”.[13] The Board was a Court of Record, with significant authority to compel appearances and the production of information.[14] It could also conduct general inquiries into railroads.[15]  In discharging its functions, the Board was not bound by findings of fact made by courts.[16] Its decisions were “final”, subject to review by cabinet and, on questions of jurisdiction, appeal to the Supreme Court.[17] These review mechanisms were important: the possibility of political and curial oversight gave contemporaries comfort, inasmuch as the Board would be confined to technical matters of administration rather than the elaboration of law and policy.[18]

Recourse was had to administrative tribunals to resolve contentious issues. The controversial rebellion losses legislation provided for the appointment of Commissioners to ascertain the extent of damage suffered by property owners.[19] Similar provisions are found in the Canada Tenures Act 1822, which was designed to extinguish the feudal system of landholding. Individuals could apply to the person administering the province of Lower Canada for commutation of the various feudal rights and burdens payable in return for payment of 1/20 of the value of their property. The Act provided for “the nomination and appointment of Experts for ascertaining the value of such fief or seigniory, according to the course of law in our said Province”.The British North America (Trade and Lands) Act 1822 made provision for trade between Upper and Lower Canada and the United States. But the Act also addressed a long-festering dispute between the Canadian provinces about the distribution of import duties charged and collected in Lower Canada on goods bound for Upper Canada. Section 17 of the Act provided for the appointment of arbitrators to resolve the dispute and s. 25 set up a similar mechanism going forward. These arbitrators had the power to compel witnesses and their awards were expressed to be final and conclusive. Meanwhile, Courts of Escheat were established under the British North America (Seigniorial Rights) Act, 1825,[20] with the Commissioners required to follow the laws of England as far as procedure was concerned “as nearly as circumstances will admit”.

In many of the schemes one finds in the Age of Invention, office holders of various sorts figured prominently.[21] As in England, much of public administration was placed in the hands of justices of the peace (often local merchants who used their positions to advance personal political agendas which were not necessarily those of the Empire). Lord Durham deplored the quality of justice generally, and the justices of the peace did not escape his ire.[22] There was no civil service, nor was there even, for that matter, a system of government departments.[23] Offices created under legislation were occupied by individuals who had no necessary allegiance to the authorities.[24] But British administrators came to understand quite well the need for a governmental apparatus to govern Canada effectively, with “an administration composed of heads of departments” developed in the 1840s.[25]

The move from private enterprise to public authority was not always swift or smooth, as is demonstrated by the history of banking regulation. Early Canadian banks were a hybrid – private entities chartered by statute – and subject to increasing degrees of regulation as the decades passed. Banking was never apolitical: the Bank of Montreal was chartered by legislation to provide banking services, but only for a period of ten years, making it subject to ongoing political oversight (“In 1831 the bank barely survived a political challenge to its charter renewal”), whilst the majority of the Bank of Upper Canada’s board of directors were members of the Executive Council of Upper Canada,[26] and, indeed, Upper Canada held up to a quarter of the Bank’s shares. Regulation of matters such as capital reserves and the distribution of bank notes intensified over the course of the 19^th century,[27] culminating in general federal legislation, the Bank Act 1871 (though the Bank of Canada did not enter upon the scene until well into the 20^th century).

Lastly, the porous public/private divide is illustrated by the creation of the first Crown Corporation in the 1840s, the Board of Works.[28] The purpose was to provide for the construction of a canal system. The Board was given ample powers in this regard, such as hiring employees and expropriating land (subject to the payment of compensation).[29] Although the Board was a distinct legal entity, it was a creature of public policy: directors of the Board served at the pleasure of the executive authorities, the Board was obliged to “examine and report” on matters referred to it by the government of the day, and the Board could not undertake any public works without prior governmental approval.[30] To this formal structure should be added the many informal structures created with tacit state backing to build railways, canals and other modes of transit: public/private partnerships avant la lettre, with private economic development in the common interest backed ultimately by the public purse.

Long before the emergence of the contemporary welfare state, therefore, there was public administration in Canada, with many of the features we now consider commonplace already in “full view”:[31] licensing and regulation; administrative tribunals; privative clauses; private rights of action; government departments with a permanent staff; Crown Corporations; public/private partnerships; and administrative agencies with broad regulatory jurisdiction. The basic forms of the modern administrative state had already begun to emerge, albeit not in a particularly structured way. Rather, they appeared on the scene in an ad hoc fashion in response to specific problems, “with little thought given to rational allocation of decision-making”.[32]  

Judicial Review

What we now call “administrative law” or “judicial review of administrative action” began to develop, many centuries ago, in the form of the prerogative writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus. These writs were originally designed, by judges sitting in the King’s common law courts in Westminster, to control the actions of so-called “inferior” courts around the country. Today’s centralized court system with superior courts as its backbone was then in the earliest stages of its development; most justice was administered locally or in ecclesiastical courts, a proposition also true of the administration of justice in far-flung colonies.[33]

The prerogative writs “flow[ed] from the King himself, sitting in his court, superintending the police and preserving the peace of this country”.[34] In its earliest days the writ of certiorari operated to transfer the record of proceedings in an inferior court to one of the King’s common law courts: “The theory is that the Sovereign has been appealed to by some one of his subjects who complains of an injustice done him by an inferior court; whereupon the Sovereign, saying that he wishes to be certified—certiorari— of the matter, orders that the record, etc., be transmitted into a court in which he is sitting”.[35] Once received in the common law court, the record could be scrutinized for error.[36] The other prerogative writs also contributed to the generation of a body of centralized jurisprudence regulating inferior courts and other entities. Prohibition functioned to stave off encroachments on the jurisdiction of the common law courts, quo warranto allowed the common law courts to assess whether a particular decision-maker was qualified to act and mandamus and habeas corpus were available to correct a wide variety of wrongs.[37] Through the operation of the prerogative writs various principles could emerge: for instance, much of the law of certiorari was about the “jurisdiction” of “Courts of Record”.[38]

Over the centuries, the common law courts extended the scope of the prerogative writs to cover a wider and wider range of bodies, generally reasoning by analogy to justify issuing writs against decision-makers which were not, strictly speaking, “inferior” courts. In Groenvelt v Burwell[39], for example, a physician had been fined and imprisoned by the College of Physicians. It was not obvious that the writ of certiorari could be issued against the College, as it was neither a so-called Court of Record, nor acting judicially, and as such not an “inferior” court whose actions could be controlled by certiorari. Nonetheless, Holt CJ held that certiorari could issue against the College, on the basis that any body with a power to examine, hear and punish is a judicial body; and any jurisdiction with the power to fine and imprison is a Court of Record. Reasoning in this way allowed the courts to apply the prerogative writs to a progressively broader range of decision-making, varying their limits “from time to time … to meet changing conditions”.[40]

In parallel, the remedies of the declaration and the injunction emerged.[41] Declaratory relief had a statutory basis initially[42] but soon came to be regarded as a “highly convenient”[43] remedy, not least because it could “guide…action in the future”[44]. Injunctive relief was available as part of the courts’ equitable jurisdiction to right wrongs: it was notably applied to procedural shortcomings in contractual and other consensual relationships.[45]

The same basic structure applied to colonies like Canada. Settlers from England brought the common law with them on their backs and when they landed on the shores of North America, the procedural and substantive rules of the law of England applied there until such time as they were modified by a competent legislative assembly (subject to the rules being appropriate given the characteristics of the colony[46]). The supervisory jurisdiction of the superior courts – the prerogative writs, injunctive relief and, later, declaratory relief – became the backbone of the Canadian system as well,[47] in both the English (Upper Canada, Nova Scotia and New Brunswick) and French (Lower Canada) colonies.[48] As early as 1767, the Nova Scotia Supreme Court made clear that “all original Actions and proceedings thereon … be as near as may be conformable to the proceedings in the Courts of Westminster Hall in England”.[49] References to the prerogative writs cannot be found in electronic databases before the 19th century, but when the prerogative writs do begin to feature they come encrusted with references to English cases.[50] This demonstrates that the common law tradition of supervision by the superior courts had been solidly implanted in Canada, with jurisprudence from the metropole guiding colonial judges.

[1] UK, EU and Global Administrative Law: Foundations and Challenges (Cambridge University Press, Cambridge, 2015).

[2] See also Jerry Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (Yale University Press, New Haven, 2012); Nicolas Parrillo, “A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s” (2021) 130 Yale Law Journal 1288. Compare Ilan Wurman, “Nondelegation at the Founding” (2021) 130 Yale Law Journal 1490.

[3] A similar story can seemingly be told of Australia: see Paul Finn, Law and Government in Colonial Australia (Oxford University Press, Melbourne, 1987).

[4] Louis Jaffe and Edith Henderson, “Judicial Review and the Rule of Law: Historical Origins” (1956) 72 Law Quarterly Review 345, at p. 347.

[5] In the interests of simplicity, I spare the reader the details of the different entities which are now known as “Canada”. Suffice it to say that the path to Confederation in 1867 was a long, winding one which passed through several constitutional staging posts.

[6] Stephen R Bown, The Company: The Rise and Fall of the Hudson’s Bay Empire (Doubleday, Toronto, 2020), at p. 89.

[7] Legislative Council A p.24 (August 28, 1764).

[8] Donald Creighton, The Empire of the St. Lawrence: A Study in Commerce and Politics, revised edition(University of Toronto Press, Toronto, 1956), at p. 113.

[9] An Act to create a Fund for defraying the expence of providing Medical assistance for sick Emigrants, and of enabling indigent persons of that description to proceed to their place of destination LC 1832, c. 17.

[10] Donald Creighton, Canada’s First Century (Oxford University Press, Oxford, 1970), at p. 26.

[11] See generally Angus MacMurchy and Shirley Denison, The Canadian Railway Act 1903 Annotated (Canada Law Book Company, Toronto, 1905).

[12] Railway Act 1903, s. 8.

[13] Railway Act 1903, s. 25.

[14] Railway Act 1903, ss. 8, 40.

[15] Railway Act 1903, s. 48.

[16] Railway Act 1903, s. 42.

[17] Railway Act 1903, s. 44.

[18] Hudson Janisch, “The Role of the Independent Regulatory Agency in Canada” (1978) 27 University of New Brunswick Law Journal 84.

[19] 12 Vic, c. 58.

[20] 6 Geo. IV, c. 59.

[21] See generally Janet McLean, Searching for the State in British Legal Thought: Competing Conceptions of the Public Sphere (Cambridge University Press, Cambridge, 2012); Marie-France Fortin, A Historical Constitutional Approach to the King Can Do No Wrong: Revisiting Crown Liability (Ph.D. Thesis, University of Cambridge, 2020).

[22] Lord Durham’s Report, pp. 40-41. The particular problem for Lord Durham was that in the colonies there were no equivalents to the moral upstanding gentlemen of the English countryside.

[23] Robert McGregor Dawson, The Civil Service of Canada (Humphrey Milford, London, 1929), Chapter I.

[24] See Lord Durham’s Report, p. 32.

[25] Donald Creighton, The Empire of the St. Lawrence: A Study in Commerce and Politics, revised edition(University of Toronto Press, Toronto, 1956), at p. 337. On the difficulties of attaching civil liability to such officers, the definitive study is Marie-France Fortin, A Historical Constitutional Approach to the King Can Do No Wrong: Revisiting Crown Liability (Ph.D. Thesis, University of Cambridge, 2020).

[26] Joe Martin, Relentless Change: A Casebook for the Study of Canadian Business History (University of Toronto Press, Toronto, 2010), at pp. 30-31.

[27] Roeliff Morton Breckenridge, A History of Banking in Canada (Washington, Government Printing Office, 1910), Chapter III.

[28] An Ordinance to Establish a Board of Works in this Province 2 Vic c 64.

[29] An Ordinance to Establish a Board of Works in this Province 2 Vic c 64, Arts. 15-17.

[30] An Ordinance to Establish a Board of Works in this Province 2 Vic c 64, Arts. 2, 7, 8, 13.

[31] Cecil Carr, Concerning English Administrative Law (Columbia University Press, New York, 1941), at p. 8 (commenting on what poor law reform heralded for the future of the British state).

[32] Paul Craig, Administrative Law, 8^th ed. (Sweet and Maxwell, London, 2016) at para. 2-002. See similarly, in regard to administrative tribunals, Chantal Stebbings, “Comment: A Victorian Legal Legacy – the Bespoke Tribunal” (Council on Tribunals, Adjust, April 2007), p. 3.

[33] Philip Girard, Jim Phillips and R. Blake Brown, A History of Law in Canada, Volume I: Beginnings to 1862 (University of Toronto Press, Toronto, 2018), chapters 12-14.

[34] R v Barker (1762) 1 W.Bl. 352, per Lord Mansfield.

[35] R v Titchmarsh (1914) 22 DLR 272 [277]-[278].

[36] R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338, at p. 357.

[37] See e.g. Bagge’s Case [1615] 11 Co Rep 93b, 98.

[38] See generally Amnon Rubinstein, Jurisdiction and Illegality (Clarendon, Oxford, 1965).

[39] (1700) 91 ER 179.

[40] R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864, at p. 882, per Lord Parker CJ (in relation to certiorari specifically, but his comments are generally applicable). See also Law Commission of Canada, “Working Paper25: Independent Administrative Agencies” (1980) at p. 20; SA de Smith, “The Prerogative Writs” (1951) CLR40, at p. 48.

[41] There was also, sometimes, a direct right of access to the superior courts.

[42] Common law courts did not have, prior to the Judicature Act 1873, the jurisdiction to issue declaratory relief but “[i]t is now accepted that superior courts have inherent power to grant declaratory relief”; Taylor v Attorney General [2018] NZSC 104, [2019] 1 NZLR 213, at para. 118 per Elias CJ.

[43] Dyson v Attorney-General (No. 1) [1911] 1 KB 410, at p. 417.

[44] Dyson v Attorney General (No. 2) [1912] 1 Ch 158, at p. 166.

[45] See e.g. Dawkins v Antrobus (1881) 17 Ch D 615; P. Murray, “Natural Justice at the Boundaries of Public Law” UK Const. L. Blog (21st November 2013) (available at http://ukconstitutionallaw.org).

[46] See generally JE Cote, The Reception of English Law (1977) 15 Alberta Law Review 29.

[47] On American developments, see Aditya Bamzai, “The Origins of Judicial Deference to Executive Interpretation” (2017) 126 Yale Law Journal 908.

[48] See Donald Fyson, The Court Structure of Quebec and Lower Canada, 1764 to 1860, online: http://www.profs.hst.ulaval.ca/Dfyson/Courtstr/contents.htm

[49] Philip Girard, Jim Phillips and R. Blake Brown, A History of Law in Canada, Volume I: Beginnings to 1862 (University of Toronto Press, Toronto, 2018), p. 362

[50] See e.g. R v Commissioners of the Turnpike Trust (1844) 1 UCQB 193 (certiorari); R v One Hundred & Sixty-Two Pieces of White Pine Timber (1839) 2 NBR 612 (prohibition); R v O’Hare (1850) 2 PR 18 (quo warranto); R v New Brunswick (County Court) (1826) 1 NBR 8 (mandamus).

This content has been updated on June 6, 2022 at 16:35.