Why is Administrative Law so Complicated? Attitudes to the Administrative State
I have uploaded a pre-proof version of the first chapter of A Culture of Justification: Vavilov and the Future of Administrative Law to SSRN: “Why is Administrative Law So Complicated?” Here is a final extract from the chapter:
It should be clear from the discussion so far in this Chapter that there is no ‘Constitution’ or general codification of administrative law. Quebec has its Civil Code and Canada has its Criminal Code, but administrative law is not confined to one self-contained handbook which explains the relationship between public administration and the courts. Canada does not have anything like the specialized administrative courts of civilian countries, such as France. There, the Conseil d’État, peopled by experienced civil servants rather than judges,oversees the actions of public administration, applying a set of rules which are distinct from those which apply between private parties. Public contracts, public liability and public unlawfulness are governed by special rules, applied by specialized courts. In common law countries like Canada, however, the same superior courts which make decisions about contracts, property and torts apply the principles of administrative law: they are staffed by generalist judges, not specialists in public administration.
One consequence is that judges do not have anything like a uniform view of public administration. They are not Enarques in whom the same principles have been inculcated, generation after generation. Moreover, there is a venerable tradition of lawyers being sceptical of the administrative state. The rise of the state in the 20th century brought with it an enormous increase in the scope of discretion of government officials. Lawyers, trained to identify and apply rules, have a natural antipathy to discretion. In formulating the general principles of administrative law they have often sought to tame administrative discretion. In fact, the influential British Victorian-era jurist Albert Venn Dicey at one point denied that there was any such thing as administrative law: there was, in the King’s courts (just as much in the dominions as in London) only one law for all, individuals and government officials alike. By the end of his life, Dicey had recanted, but his scepticism of administrative discretion casts a long shadow over the subject.
Judicial attitudes to the administrative state run along three fault lines: deference and non-deference; form and substance; and reason and authority.
- Deference and Non-Deference
Some judges are hostile to administrative discretion, others much more open to it. Some seek to cut discretion down to the bare minimum, others are comfortable with deferring to the views of administrative decision-makers, especially those who can plausibly claim to be expert in their field of regulation.
Dicey’s hugely influential account of English public law identified judges as the “guardians of the rule of law”, on whom it was incumbent “to ensure that any person or body relying on power delegated by the legislature abide by the terms and conditions on which that power was granted”. A deferential approach to judicial review requires judges, however, to be satisfied by an answer that is merely reasonable, even on questions of law. It does not need to be the answer the judge would have given after due consideration of the question. Intervention is possible only where an interpretation “cannot be rationally supported by the relevant legislation…” Deferring to administrative decision-makers’ interpretations of law requires judges to pull against the current of tradition.  Intervention is justifiable only in extreme cases, not in ordinary ones. Administrative autonomy must be respected, tradition put to one side. Whether judges accord weight – reserving for themselves the final decision but according significant weight to the conclusions of the front-line decision-maker – or space – carving out a zone into which courts will not intrude as long as the impugned decision is reasonable – a deferential approach requires them to no longer think as lawyers traditionally have thought.
If you know any lawyers, you can imagine how much difficulty this has caused over the years!
- Form and Substance
Some lawyers prefer form, some prefer substance. By form, I mean the development of conceptual categories, into which decisions must be placed without regard to whether the achievement of the substantive ends intended by the development of the categories is actually furthered by placing a particular decision in a category. By substance, I mean paying attention to the eccentricities of the individual decision and the statutory provisions pursuant to which it was made.
An example might help the reader to grasp the importance of the form and substance fault line. The traditional distinction between jurisdictional and non-jurisdictional error was commonly seen as formal in character. It is formal because it sorts decisions into different categories based on the abstract features of the concept of jurisdiction. It does not operate by reference to the contextual considerations presented by individual decisions. This formalism marked the law prior to New Brunswick Liquor. In the 1980s, the Canadian law of judicial review continued to have a relatively formal structure: jurisdiction retained a tenacious hold on Canada’s legal imagination; and deference depended in part on a formal feature of decision-making structures, namely the presence of a privative clause. If there was a privative clause, decisions were sorted into the ‘deference’ category, as they were ‘within the jurisdiction’ of the decision-maker.
But this formal distinction was challenged by substantive opponents, such as the pragmatic and functional approach considered in the next chapter. Applying it forced courts to confront the nature of the statutory scheme, the nature of the relationship between the particular decision and the relative expertise of the decision-maker, and the nature of the particular question presented for review – instead of mechanically sorting decisions into different categories based on their formal characteristics, it was necessary to grapple with the contextual particularities of the decision in question.
In general, some lawyers refer bright-line rules and categories, others are more comfortable with open texture and contextual considerations. Over the years, administrative law has yo-yoed between form and substance, depending on whether the formalists or substantivists have the upper hand.
- Reason and Authority
The last fault line is between reason and authority. Professor Dyzenhaus has described this as the distinction between “deference as submission” and “deference as respect”. Some judges accord deference and apply deferential standards because there is some authoritative basis to do so. Others, though, require a reasoned basis to defer in the first place and to uphold a decision.
This fault line overlaps the form/substance fault line to some extent. An authoritative basis for deference is a privative clause. A reasoned basis for deference is the expertise of a decision-maker. For a judge who seeks an authoritative basis for deference, deference is appropriate where a decision-maker can claim authority based on a privative clause. By contrast, a judge seeking a reasoned basis for deference will look to contextual indicators such as expertise to justify according deference to a decision-maker. Put another way, a judge deferring because there is a privative clause will defer “because the legislature told me to” whereas a judge looking for a reasoned basis will only defer “because doing so is justified by the decision-maker’s demonstrated competence”. And, on the authority side of the line, a judge might happily uphold a decision as long as the conclusion is within the broad bands of acceptability whereas across the divide a judge who seeks reason will only be satisfied if there the decision-maker has provided a sound justification for its conclusions.
The goal of this chapter has been to introduce the complexity of administrative law by reference to history, the variety of decision-makers, important concepts and decisions and attitudes to the administrative state.
Historically, today’s administrative law is the result of a continual process of slow evolution, retrofitting devices designed for very different purposes to the realities of the contemporary administrative state.
This state has a vast array of decision-makers: the general principles of administrative law which have been developed in recent decades are applied in specific situations which differ radically in terms of technical complexity, political sensitivity and morality.
The general principles contain and are sometimes mediated through concepts – jurisdiction, deference and legislative intent – which are themselves inherently complex.
Lastly, the general principles and concepts are applied by judges who often have radically different attitudes to the administrative state and the role of courts in policing the boundaries of jurisdiction, giving deference, respecting legislative intent and developing the general principles of administrative law. Complexity is layered upon complexity is layered upon complexity is layered upon complexity. In the next Chapter, we will plunge into that complexity by taking a deep dive into the Canadian law of judicial review.
Before doing so, though, it is worth making an observation about how the politics of judicial review have evolved in recent decades. When the Canadian courts first built their doctrine of deference, it was in aid of progressive causes. There was a general view that judges were hostile to, for example, labour relations boards seeking to redress imbalances between employers and unions and would magic up any old reason to intervene and quash pro-union decisions. In that era, these labour relations boards were peopled by practitioners and academics of unimpeachable credentials, experts in every sense of the word.
But the expansion of judicial review has changed things significantly. The fault line between reason and authority became especially volatile. Opening policy-making, prisons and immigration to judicial oversight led the courts into much more high-stakes areas. Deference was nonetheless expanded and benefitted decision-makers who did not have expertise comparable to that of labour relations boards. With higher stakes but less expertise, those who would have cheered on labour relations boards became more muted – and sometimes openly hostile – to deference. Progressives in the 1970s would not necessarily share common cause with their fellow political travellers of the 2010s and sometimes find themselves in alliances with more conservative thinkers who are sceptical of the contemporary administrative state. I say “sometimes” advisedly, because even within progressive circles one can find differing views on deference: those who advocate for clients who have suffered discrimination before well-funded human rights tribunals might be more pro-deference than those whose practice is primarily representing refugees and those with precarious status in Canada. Where someone stands on deference may depend on where they most often interact with the administrative state.
 See also David Stratas, “A Decade of Dunsmuir: Please No More” in Paul Daly and Leonid Sirota, eds, A Decade of Dunsmuir/Les 10 ans de Dunsmuir (Toronto: Carswell, 2018) 7 at 8: “In this area of law, individual judges at all levels of court – for the best of motives – have been decreeing rules and outcomes based on their own personal notions of the proper role of the judicial branch vis-à-vis administrative decision-makers”. And this can create a feedback loop, as law students and lawyers learn to hit judges’ emotional buttons rather than to ground arguments in doctrinal rules: “it was better, I concluded, to teach [administrative law] as an exercise in advocacy; ends-motivated analyses designed to serve the interests of clients” (Craig Forcese, “Teaching Canada’s Administrative Law Standard of Review” in Paul Daly and Leonid Sirota, eds, A Decade of Dunsmuir/Les 10 ans de Dunsmuir (Toronto: Carswell, 2018) 159 at 160.
 The following paragraphs draw on “Canadian Labour Law after Vavilov” (2021) 23 Can J Lab & Emp L 103.
 National Corn Growers Association v Canada (Import Tribunal),  2 SCR 1324 at 1333, 74 DLR (4th) 449, Wilson J.
 “[A] rational basis for a holding of law means that a reasonableness test rather than a rightness test of administrative determination is applied”. Hudson N Janisch, “Towards a More General Theory of Judicial Review in Administrative Law” (1989) 53:2 Sask L Rev 327 at 336.
 Canadian Union of Public Employees v New Brunswick Liquor Corporation,  2 SCR 227 at 237, 97 DLR (3d) 417.
 See e.g.H Wade MacLauchlan, “Judicial Review of Administrative Interpretations of Law: How Much Formalism Can We Reasonably Bear?” (1986) 36:4 UTLJ 343 at 367. And perhaps also the current of legal practice which emphasizes the primacy of lawyerly tools of analysis in the search for the best answers to legal questions (Luc Tremblay, « La norme de retenue judiciaire et les « erreurs de droit » en droit administratif : une erreur de droit? Au-delà du fondationalisme et du scepticisme » (1996) 52 R du B141) and the differing perspectives that judges and administrators bring to bear on the task of interpreting statutes (Roderick A Macdonald, “On the Administration of Statutes” (1987) 12:3 Queen’s LJ 488 at 494-504).
 See Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge: Cambridge University Press, 2012).
 See also Martin Olszynski, “Dunsmuir is Dead – Long Live Dunsmuir! An Argument for a Presumption of Correctness” in Paul Daly & Leonid Sirota, eds, A Decade of Dunsmuir/Les 10 ans de Dunsmuir (Toronto: Carswell, 2018) 99.
 See generally David Dyzenhaus, “Constituting the Rule of Law: Fundamental Values in Administrative Law” (2002) 27:2 Queens LJ 445; Paul Daly, “The Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012) 50:2 Osgoode Hall LJ 317.
 See also the distinction between form and substance suggested by Patrick Atiyah & Robert Summers, Form and Substance in Anglo-American Law (Oxford: Clarendon, 1987). A substantive reason “may be defined as a moral, economic, political, institutional or other social consideration” (at 5-6) whereas a formal reason “is a legally authoritative reason on which judges and others are empowered or required to base a decision or action, and such a reason usually excludes from consideration, overrides, or at least reduces the weight of, any countervailing substantive reasoning arising at the point of decision or action” (at 2).
 John M Evans & Trevor Knight, “Cory on Administrative Law” in Patrick J Monahan & Sandra A Forbes, eds, Peter Cory at the Supreme Court of Canada: 1989-1999 (Winnipeg: Canadian Legal History Project, 2001) 71.
 See also Mary Liston, “Deference as Respect: Lost in Translation?” in Paul Daly & Leonid Sirota, eds, A Decade of Dunsmuir/Les 10 ans de Dunsmuir (Toronto: Carswell, 2018) 47.
 “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart, ed, The Province of Administrative Law (Oxford: Hart, 1997) 279.
This content has been updated on August 16, 2023 at 23:13.