The Ages of Administrative Law: The Age of Expansion
I have posted “The Ages of Administrative Law“, my contribution to this year’s Public Law Conference, to SSRN. Here is the second substantive part. Thoughts and comments very welcome.
Central government did not regulate many aspects of public and private life in the 19th century. In Canada, the early years post Confederation were marked by an absence of central government control. Moreover, the notion of responsible government was still developing and the electoral franchise remained limited, such that the creation of a vast governmental apparatus would not have a democratic imprimatur. But in the first half of the twentieth century, changing social conditions and expectations of the state drove governmental activity into areas of management, regulation and social welfare, leading to the creation of vast state apparatuses to discharge the new functions governments adopted in the interwar and post-World War II eras. Motivated by the resulting diversity of decision-making bodies and concerned about the proliferation of different procedures, governments and legislatures set down procedural baselines and set up coordinating bodies. And through these reform processes, an overarching set of values was generated, helping to unify – at a conceptual level – the disparate array of bodies which had proliferated by the mid-to-late 20th century, and set the stage for the emergence of the Age of Principle.
The Structure of the State
Around the time of Confederation, the principal concern of the federal government was with extending and protecting the frontier and building a national economy: “Canada never had the liberal state in the middle of the nineteenth century that England had”. As such, there was only a “handful of government offices in Ottawa” and officials “scattered throughout the country”, concerned with collecting customs duties, conducting land surveys and keeping the peace.
Given that “railways made Canada possible”, it is unsurprising that oversight of railways represented the federal government’s first major foray into regulation. This was of a piece with the standing concern with a group of “policies and instruments which were designed to transform the British North American territories of the mid-nineteenth century into a political and economic unit”. Regulatory interest in waterways and grain soon followed, before the exigencies of war heralded “marked intervention in the economy”. This was temporary, “undertaken for pragmatic reasons, not on principle, and it was designed to ensure the survival of the largely laissez-faire economy of pre-war Canada, not to end it”. But post-World War II, “[w]elfare state activities blossomed”.
Provinces became very active too, especially in response to popular pressure for more humane workplace conditions and the provision of basic utilities. British Columbia’s Workmen’s Compensation Act 1902 provided for a no-fault compensation regime overseen by arbitrators (albeit that many cases were resolved by the courts). By the time William Ralph Meredith proposed an Ontario workers’ compensation scheme characterized by what came to be known as the “Meredith Principles”, he was already able to rely in support of a state-run scheme on the existence of the Ontario Railway and Municipal Board and the Hydro-Electric Power Commission.
Federally and provincially, the latter half of the 20th century bore witness to an “immense increase in regulation”, much of it attributable to the hard work of a group of high-level civil servants in Ottawa. In the fifth volume of his seminal report, a volume dedicated to analyzing and discussing the powers of 22 tribunals, Chief Justice McRuer admitted that a comprehensive survey of the contemporary state in Ontario alone would be a “task of vast proportions”, such was the variety of administrative tribunals which existed in Canada’s most populous province already in the early 1970s. Similarly, the Law Reform Commission of Canada was moved to remark even in 1980 that there had been a “proliferation of various governmental bodies” whose structures and functions were not “delineated or allocated in the most rational manner”.
What was true of Canada was, of course, true of Western liberal democracies generally. During the first half of the 20th century the state in common law jurisdictions expanded dramatically, adding a variety of managerial, regulatory and welfare functions to its remit. There were state broadcasters on the state-run airwaves, national airlines flying in and out of the country and state-run corporations extracting natural resources such as coal and uranium; with detailed rules developed by independent agencies for competition, securities trading and (later) environmental protection; and social assistance programs mushroomed, sprouting up in areas such as pensions and healthcare. Although the expansion of functions was dramatic, it relied on the basic institutional forms developed in the Age of Invention, with Crown Corporations through to independent regulatory commissions and administrative tribunals called upon depending on the nature of the task at hand.
The explosion of managerial, regulatory and welfare activity created a proliferation of state bodies and, ultimately, a demand for streamlining of procedures (and, eventually, a demand for a contraction of state activity).
A classic in this regard was the seminal report of the UK Committee on Administrative Tribunals and Inquiries, commonly known as the “Franks Committee” after its chair, Sir Oliver Franks. Pursuant to its terms of reference, the Franks Committee was to consider, “the constitution and working of tribunals other than the ordinary courts of law”. An important challenge for the Franks Committee – created by the “haphazard” nature of delegations of decisional authority – was to suggest how the “existing chaos of special jurisdictions” could be “moulded into some kind of a coherent system of courts”. One of the key messages of the Report was that “tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration”. To conceive of administrative tribunals as adjudicative instruments was to pave the way to a system of administrative justice transcending the ad hoc arrangements to which different governmental bodies had become accustomed. The Franks Committee went further still. Its “primary legacy” was the development of a set of overarching principles of openness, fairness and impartiality to which administrative tribunals should aspire:
In the field of tribunals openness appears to us to require the publicity of proceedings and knowledge of the essential reasoning underlying the decision; fairness to require the adoption of a clear procedure which enables parties to know their rights, to present their case fully and to know the case which they have to meet; and impartiality to require the freedom of tribunals from the influence, real or apparent of departments concerned with the subject-matter of their decisions.
In sum, the Franks Committee contributed to the perception that administrative tribunals can and should be systematized in terms of their oversight, procedures and principles. The Committee’s response to the changing social conditions in mid-century was to centralize oversight, pursue procedural harmonization and generate a rationalized set of principles.
In Australia, the Commonwealth Administrative Review Committee produced a 1971 report on administrative justice matters. The Committee was presided over by Justice John Kerr (as he then was) to consider the “vast range of powers and discretions” held by the federal administration. Conscious of the absence of any “general prescription” of procedural rules, and of Australia’s lack of an equivalent to the British Council on Tribunals created post-Franks, the Committee formed the view that there was a need for “the establishment of machinery which provides for a more comprehensive review of administrative decisions”.
In formulating an alternative, the Committee was mindful of the need to prescribe both substantive and procedural aspects to the role of any oversight bodies. It ultimately concluded that legislation should provide for a court with expertise in administrative law and also for a general administrative appeals tribunal which would have the power to review the merits of administrative decisions. This tribunal, to be vested with a supervening jurisdiction, would have the power to regulate its own procedure, and by virtue of its existence and supervisory role bring a significant degree of uniformity to administrative appeals. The Committee nonetheless went on to make recommendations about the constitution and procedures of administrative tribunals, with “basic procedures” to be set out in statute. On foot of the report, the Administrative Appeals Tribunal Act 1975 was adopted by the Commonwealth Parliament, creating an Administrative Appeals Tribunal with a broad jurisdiction to review the merits of a variety of administrative decisions, and an Administrative Review Council with a mandate to oversee administrative tribunals. Further merits review bodies have been added over the years, such that “[m]erits review has become a significant mechanism for responding to individual grievances, thereby enhancing the accountability of public decision-making”.
In Canada, the major document of this era was the mammoth McRuer Report, spanning five thick volumes published between 1968 and 1971. The Terms of Reference were vast, covering legislative, executive and administrative action affecting individuals’ freedoms, rights and liberties, but focused attention on “the statutory methods by which the powers of the State are brought to bear in the carrying out or administering of such social schemes” created by the Ontario legislature. In Volume 1, the volume in which administrative justice issues were addressed at greatest length, Chief Justice McRuer recommended a basic distinction between “judicial” and “administrative” tribunals – the latter distinguished by the high policy content of its decisions – and considered that uniform “minimum and basic procedural standards enacted by legislation” were appropriate to counter the inherent uncertainty of the scope and content of the rules of natural justice. The upshot of this particular recommendation was the enactment of the Statutory Powers Procedure Act. The emphasis on procedural harmonization and the proposal (albeit lukewarm) for centralized oversight were of a piece with the work of the Franks Committee and its counterparts elsewhere in the common law world.
The work here was not only that of governmental committees. Academics were hard at it too, with scholars taking note of the Age of Expansion (in greater numbers, given increased state funding of universities). It is no accident that the ‘functionalist’ school of public lawyers came to prominence in this era, conscious of the “vast extension of state and municipal activity”. Thinkers such as William Robson, Harold Laski and John Griffith at the London School of Economics had ready equivalents on the other side of the Atlantic in the likes of John Willis and Bora Laskin, who were in turn influenced by American thinkers. Willis was interested in “what actually happens”, echoing Robson’s desire to conduct “primarily a study of actual institutions”. The interest of these scholars was in ensuring that the Age of Expansion achieved its intended aims, that the functions of the state were actually carried out. The stakes here were high, as the Age of Expansion was hotly contested – ultimately, the sceptics would succeed in persuading politicians to contract the zone of state activity, but the reforms of the Age of Expansion have nonetheless persisted.
While the prerogative writs were used to control the actions of an array of administrative decision-makers, there was no “law of judicial review of administrative action” as such. Each of the prerogative writs had its own procedures and principles. The result was a complex, fragmentary collection of law identifiable only through careful analysis of the interstices of the prerogative writs. As a result, the scope of the prerogative writs was co-extensive with the scope of judicial review. Which bodies were reviewable, and what types of error might be put in issue before the superior courts of record, depended on the scope of the prerogative writs, in short on the “law of certiorari”, the “law of mandamus” and so on. As one contemporary commentator observed, it was necessary to ask “On what grounds will certiorari issue?”
This scope evolved as slowly as the writs themselves did. In the Age of Expansion, this caused significant difficulties. Over the decades and centuries, various restrictions attached to the writs, like barnacles to the hull of a shipwreck. The rise of declaratory and injunctive relief ameliorated matters somewhat, but contemporary commentators deplored administrative law’s position as “a backward child in the legal family”:
The remedies, for no practical reason are plural; some of them cannot be used if another remedy is available; the lines between them are imprecise and shifting; the judges employ vague concepts (which they do not define) in marking the boundaries of each remedy; the student will scan the law reports in vain for any sound reasons to justify these complexities, or indeed any explicit judicial recognition of their existence.
Furthermore, inasmuch as there was a set of general principles which could be teased out, these were ill-adapted to the realities of an expanded administrative state. By the early 20th century there had emerged a tripartite classification of administrative decisions into rigid, formal categories of “legislative”, “administrative” and “judicial”. Regardless of the importance of the substance of the decision in question, that which was “administrative” and did not alter any individual’s legal position, or that which was “legislative” and affected the world at large, was not subject to judicial oversight; only “judicial” decisions concerning “rights” attracted judicial scrutiny. Thus when the state distributed “privileges”, as it increasingly did, it could do so free from the oversight of the courts. Moreover, whereas the courts could correct “jurisdictional” errors to make sure decision-makers stayed within the four corners of the authority given to them by statute, they could not correct errors made “within jurisdiction” by decision-makers (absent manifest irrationality). The effect, despite occasional judicial ingenuity, was to obscure large swathes of public administration from judicial oversight.
These complaints rang loud enough that politicians took notice. The governmentally commissioned reviews which led to the rationalization of the administrative state also contributed to reforms of judicial review. For example, McRuer made detailed recommendations in respect of appeals and judicial review, noting in particular the “vexatious technicalities” of the prerogative writs. Similarly, the Kerr Committee was concerned that the traditional means of judicial oversight of public administration – the prerogative writs of certiorari, prohibition, quo warranto and mandamus – were subject to too many “technical limitations” to offer a “comprehensive means of review”; indeed, the Committee found the “complex pattern of rules as to appropriate courts, principles and remedies” to be “both unwieldy and unnecessary”. Canada introduced a Federal Court to oversee federal administrative action in a coherent manner.
The subsequent procedural reforms supplanted the prerogative writs by the development of “a single simplified procedure for obtaining all forms of relief”. These reforms created a unified application for judicial review, abolishing the procedural intricacies of the prerogative writs. There was not a total break with the past, as the prerogative writs were used as reference points. Consider s. 2(1) of Ontario’s Judicial Review Procedure Act:
On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
Nonetheless, the effect of the procedural reforms was dramatic, for the scope of judicial review would no longer depend on the scope of the prerogative writs. Whether an Ontario court decided to issue mandamus, prohibition, certiorari, a declaration or an injunction would henceforth turn not on the peculiar law relating to those remedies but on the compliance of the holder of a “statutory power” with the principles of judicial review of administrative action, which began to take shape in the 1960s and 1970s.
These procedural reforms were accompanied by judicial reform. In the 1960s, the judges in London awoke from their “long sleep” and consigned the tripartite classification to history. The effect of Anisminic v Foreign Compensation Commission was to obliterate the distinction between jurisdictional and non-jurisdictional error;  Padfield v Minister for Agriculture established that ministerial discretion even on matters of policy could be subject to judicial review; and Ridge v Baldwin did away with the rights/privileges distinction. So it is that “the modern view, now received doctrine, is that the classification of powers is not a sound criterion for the operation of precise rules of law”. To this trilogy of cases should be added Conway v Rimmer, which established that governments could not invoke confidentiality to stymie litigation.
The work of academics such as HRW Wade and SA de Smith is also an important aspect of the Age of Expansion. Their seminal textbooks reflected the concerns of this era: a desire to jolt the judges out of somnolence as far as oversight of public administration was concerned, coupled with a search for general propositions about the scope of judicial review. De Smith, in particular, “provided the academic systematization of the principles of judicial review…” This scholarly work synthesized the law of the prerogative writs as much as humanly possible and, along with judicial and procedural reforms, set the stage for the elaboration of general principles of administrative law.
Similar transformations occurred in Canada: for Professor de Smith, read Professors Arthurs, Hogg, Mullan and Weiler; procedural reforms were effected at the federal and provincial level; and, over the years, the Canadian judiciary invigorated the law of judicial review of administrative action.
Courts around the common law world were henceforth more able
to develop a coherent set of general principles for judicial control of public administration, based on
free-standing, autonomous concepts of rationality, legality and procedural
propriety rather than on the scope of certiorari, mandamus, prohibition,
quo warranto, declaratory relief and injunctive relief.
 Administrative Law: Independent Administrative Agencies, Working Paper 25 (Department of Justice, Ottawa, 1980), at pp. 20-21.
 RCB Risk, “Lawyers, Courts, and the Rise of the Regulatory State” (1984) 9 Dalhousie Law Journal 31, at p. 32.
 Administrative Law: Independent Administrative Agencies, Working Paper 25 (Department of Justice, Ottawa, 1980), at p. 21
 Bernard Hibbitts, “The Supreme Court and the Board of Railway Commissioners, 1903-1929” (1991) 41 University of Toronto Law Journal 60, at p. 61.
 VC Fowke, The National Policy and the Wheat Economy (University of Toronto Press, Toronto, 1957), at p. 25.
 See e.g. Manitoba Grain Act 1900.
 Administrative Law: Independent Administrative Agencies, Working Paper 25 (Department of Justice, Ottawa, 1980), at p. 24.
 John Herd Thompson with Allen Seager, Canada 1922-1939: Decades of Discord (McClelland and Stewart, Toronto, 1985), at p. 24.
 Ibid.,at p. 28.
 RCB Risk, “Lawyers, Courts, and the Rise of the Regulatory State” (1984) 9 Dalhousie Law Journal 31, at p. 33.
 Anjan Chaklader, History of Workers’ Compensation in BC: A Report to the Royal Commission on Workers’ Compensation in BC (May, 1998), at pp. 14-15, online.
 Royal Commission on Laws relating to the liability of employers to make compensation to their employees for injuries received in the course of their employment which are inforce in other countries, and as to how far such laws are found to work satisfactorily (October, 1913), at p. 7.
 RCB Risk, “Lawyers, Courts, and the Rise of the Regulatory State” (1984) 9 Dalhousie Law Journal 31, at p. 47.
 JL Granatstein, The Ottawa Men: The Civil Service Mandarins 1935-1957 (Rock’s Mills Press, Oakville, 1982).
 Royal Commission: Inquiry into Civil Rights, Report No. 1, Vol. 5 (Queen’s Printer, Toronto, 1971), at p. 1741.
 Administrative Law: Independent Administrative Agencies, Working Paper 25 (Department of Justice, Ottawa, 1980), at p. 31.
 Ibid.,at p. 32.
 See e.g. Report of the Committee on Ministers’ Powers (Cmnd. 4060, 1932) (the “Donoughmore Committee”).
 Report of the Committee on Administrative Tribunals and Enquiries (Cmnd. 218, 1957). See also Final Report of Attorney General’s Committee on Administrative Procedure (Government Printing Office, Washington DC, 1941).
 George W Keeton, “Administrative Tribunals and the Franks Report”  Current Legal Problems 88, at p. 90.
 Ibid.,at p. 93.
 Report of the Committee on Administrative Tribunals and Enquiries (Cmnd. 218, 1957), at para. 40.
 Carol Harlow and Richard Rawlings, Law and Administration, 3rd ed. (Cambridge University Press, Cambridge, 2009), at p. 489.
 Report of the Committee on Administrative Tribunals and Enquiries (Cmnd. 218, 1957), at para. 42.
 Report of the Commonwealth Administrative Review Committee, Parliamentary Paper No. 144 of 1971 (Commonwealth Government Printing Office, Canberra, 1971), at para. 11.
 Ibid.,at para. 74.
 Ibid.,at para. 12.
 Report of the Commonwealth Administrative Review Committee, Parliamentary Paper No. 144 of 1971 (Commonwealth Government Printing Office, Canberra, 1971), at paras. 92-93.
 Ibid.,chapter 11.
 Ibid.,chapter 14.
 See ibid.,at para. 300:
The jurisdiction should be to hear and determine an application by a person who is aggrieved or adversely affected by a decision on the ground that the decision was erroneous on the facts and merits of the case.
 Ibid.,at para. 296.
 Ibid.,chapter 16.
 Ibid.,at para. 326.
 Administrative Appeals Tribunal Act 1975, ss. 25-26 and Schedule.
 Section 51(1) of the Administrative Appeals Tribunal Act 1975 provided a lengthy list of functions.
 Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (Hart, Oxford, 2011), at p. 174. Moreover, “[t]his super tribunal model has been replicated at the State level in Australia, although these tribunals have taken on a variety of different forms in practice”. Lorne Sossin and Jamie Baxter, “Ontario’s Administrative Tribunal Clusters: A Glass Half-full or Half-empty for Administrative Justice?” (2012) 12 Oxford University Commonwealth Law Journal 157, at p. 166.
 Royal Commission: Inquiry into Civil Rights, Report No. 1, Vol. 1 (Queen’s Printer, Toronto, 1968), at p. 2.
 Ibid., chapter 10.
 Ibid., at p. 211.
 Ibid., at pp. 146-147.
 A series of reports in Quebec (Dussault, 1971, Ouellette, 1987 and Garant, 1994) culminated in the Act respecting administrative justice, CQLR c J-3. Title I lays down uniform procedures for decisions affecting individuals, Title II creates a generalist administrative appeals tribunal (the Tribunal administratif du Québec) and Title III creates an oversight body, the Conseil de la justice administrative. See France Houle, “A Brief Historical Account of the Reforms to the Administrative Justice System in the Province of Québec” (2009) 22 Canadian Journal of Administrative Law & Practice 47.
 Michael Taggart, “Prolegomenon to an Intellectual History of Administrative Law in the Twentieth Century: The Case of John Willis and Canadian Administrative Law” (2005) 43 Osgoode Hall Law Journal 223.
 See Martin Loughlin, Public Law and Political Theory (Oxford University Press, Oxford, 1992).
 William Robson, Justice and Administrative Law: A Study of the British Constitution (Macmillan & Co, London, 1928), at p. 250.
 See Matthew Lewans, Administrative Law and Judicial Deference (Hart, Oxford, 2016).
 Michael Taggart, “Prolegomenon to an Intellectual History of Administrative Law in the Twentieth Century: The Case of John Willis and Canadian Administrative Law” (2005) 43 Osgoode Hall Law Journal 223, at p. 251.
 Justice and Administrative Law: A Study of the British Constitution (Macmillan & Co, London, 1928), at p. 39. See also John Griffith and Harry Street, Principles of Administrative Law (Pitman, London, 1952), at p. 2.
 See e.g. Lord Hewart, The New Despotism (Ernest Benn, London, 1929), Friedrich Hayek, The Road to Serfdom (Routledge, London, 1944).
 See especially de Smith, “Wrongs and Remedies in Administrative Law” (1952) 15 Modern Law Review 189, at p. 206.
 David Foulkes, An Introduction to Administrative Law (Butterworths, London, 1964), at p. 103.
 HRW Wade, Administrative Law (Clarendon, Oxford, 1961), at p. v.
 John Griffith and Harry Street, Principles of Administrative Law (Pitman, London, 1952), at p. 236. See also Report of the Committee on Ministers’ Powers (Cmnd. 4060, 1932) (the “Donoughmore Committee”), at pp. 62, 99, 117.
 R v Electricity Commissioners, ex parte London Electricity Joint Committee Co  1 KB 171, at pp. 204-205, per Atkin LJ.
 Even Professor Wade, notwithstanding his enthusiasm for judicial review by the ordinary courts, had to concede that the “battery of effective remedies” (of the prerogative writs) was used in an “erratic” fashion by judges, leading to “gaps and anomalies, and to a confusion of doctrine to which the courts seem strangely indifferent”. Administrative Law (Clarendon, Oxford, 1961), at p. 38.
 Royal Commission: Inquiry into Civil Rights, Report No. 1, Vol. 1 (Queen’s Printer, Toronto, 1968), subsections 4 and 5.
 Ibid., at pp. 146-319.
 Ibid.,at para. 21.
 Ibid.,at para. 17.
 Ibid.,at para. 58. The subsequent “Ellicott Committee”, Report of the Committee of Review of Prerogative Writ Procedure, Parliamentary Paper No. 56 of 1973 (Commonwealth Government Printing Office, Canberra, 1973), reported in more detail on judicial review, with its recommendations leading to the adoption of the Administrative Decisions (Judicial Review) Act 1977.
 See generally Ian Bushnell, The Federal Court of Canada: A History, 1875-1992 (University of Toronto Press, Toronto, 1992), chapter 14. See also Three Rivers Boatman Limited c Conseil Canadien des Relations Ouvrières  RCS 607.
 R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd  AC 617, at p. 638, per Lord Diplock.
 RSO 1990, c J.1.
 See generally, TT Arvind et al eds., Executive Decision-making and the Courts: Revisiting the Origins of Modern Judicial Review (Hart, Oxford, 2021),
 Robert Stevens, The English Judges (Hart, Oxford, 2005), at p. 19.
  2 AC 147.
  AC 997.
  AC 40.
 R v Toohey, ex parte Northern Land Council (1981) 151 CLR 170, at p. 225, per Mason J.
  AC 910.
 See also Louis Jaffe, Judicial Control of Administrative Action (Little, Brown & Co, Boston, 1965).
 Dean Knight, Vigilance and Restraint in the Common Law of Judicial Review (Cambridge University Press, Cambridge, 2018).
 John Bell, “Comparative Administrative Law” in Mathias Reimann and Reinhard Zimmermann eds., The Oxford Handbook of Comparative Law (Oxford University Press, Oxford, 2006), p. 1259, at p. 1285.
 “Rethinking Judicial Review: A Slightly Dicey Business” (1979) 17 Osgoode Hall Law Journal 1.
 “Judicial Review in Canada: How Much Do We Need It?” (1974) 26 Osgoode Hall Law Journal 337.
 “Fairness: The New Natural Justice” (1975) 25 University of Toronto Law Journal 281.
 “The Slippery Slope of Judicial Intervention: The Supreme Court and Canadian Labour Relations 1950-1970” (1971) 9 Osgoode Hall Law Journal 1.
 See e.g. David Mullan, “Reform of Administrative Law Remedies: Method or Madness?”  Federal Law Review 340; John Evans, “Judicial Review in Ontario — Recent Developments in the Remedies — Some Problems of Pouring Old Wine into New Bottles” (1977) 55 Canadian Bar Review 148.
This content has been updated on June 13, 2022 at 18:05.