New Course: The Law of Economic Regulation

This Fall I am teaching a new course on advanced administrative law at the University of Ottawa. Here is the overview and course outline.

Advanced Administrative Law (The Law of Economic Regulation)

Paul Daly

Fall 2026

Overview

Students in this course learn the legal principles relating to the regulation of economic activity in Canada. We will discuss the key concepts needed to understand the law of economic regulation in sectors such as broadcasting, competition, energy, financial services, intellectual property, nuclear energy, securities, telecommunications and transportation. No prior knowledge of these sectors is required: the goal is to understand the relevant legal principles and key concepts. We will focus on issues such as constitutional structure, institutional form and the balance between individual rights and the public interest, with a view to preparing students for the practice of regulatory law. Administrative law is not a pre-requisite.

Required Reading: Daly, The Law of Economic Regulation (draft, available on Brightspace) (this has chapters that correspond to the modules)

Additional reading: as noted below

Module 1: Historical Overview of Canadian Regulation

In this Module, we discuss the historical origins and development of Canadian regulation since the arrival of European settlers. There are deep historical roots underpinning Canada’s administrative state, dating to well before Confederation in 1867, and the basic regulatory forms can be identified as early as the 18^th and 19^th centuries. Licensing schemes, crown corporations, independent agencies and administrative tribunals were all created at various times to achieve legislative policy goals. In the 20^th century, the scope of the administrative state exploded, with the state (federally and provincially) taking on a more and more active role in the management of economic activity. In the late 20^th century and into the early 21^st century, the dominant concept has been ‘New Public Management’, with privatization, deregulation and responsive regulation as prominent tools of state policy.

Reading: Daly, “The Ages of Administrative Law”

Module 2: Constitutional Structure of Regulation in Canada

In this Module, we discuss the constitutional division of powers and its implications for regulation in Canada. Notably, federal legislative authority is limited to prescribed heads of power (e.g. banking, intellectual property, nuclear energy and broadcasting). There is no general federal authority in relation to regulation of economic activity, meaning that many areas of economic regulation are subject to provincial regulation (e.g. energy, financial services and securities). Some areas of economic activity (e.g. transportation) are subject to regulation by both levels of government.  Any legislative or administrative action falling outside the scope of a defined head of federal or provincial power is unlawful. There are some areas where evolutions in law (e.g. competition) or technology (e.g. telecommunications) have shifted authority to the federal level, but these are limited in number and scope. Where there is a desire to achieve a shared federal-provincial policy goal, the preferred means of moving forward is through cooperative federalism, on a province-to-province or federal-to-province basis. We will also note the absence of any meaningful constitutional requirement for economic integration.

Additional Reading:

Galderma Canada Inc. v. Canada (Attorney General), 2024 FCA 208

Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837

Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, [2018] 3 SCR 189

Sharp v. Autorité des marchés financiers, 2023 SCC 29

Lavoie, Trade and Commerce: Canada’s Economic Constitution (2025)

Module 3: The Powers of Administrative Agencies

In this Module, we describe the functions and powers of administrative agencies. Like any other creature of statute, an administrative agency is created by statute to achieve a stated mission, and given powers to accomplish that mission. We will discuss the relationship between the stated mission and the powers given to the administrative agency, as well as the concept of ‘implied’ powers. We will also address basic issues of structure, such as the distinction between individualized decision-making and rule-making and the roles played by  different groups within an administrative agency, such as adjudicators, commissioners, management and staff (including their appointment and removal). In that regard, we will also analyze the basic principles relating to overlapping functions and the extent to which administrative agencies must respect a separation between rule-making, investigative and adjudicative functions.

Reading:

Société Radio-Canada v. Canada (Attorney General), 2023 FCA 131

ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 SCR 140

West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2025 ONCA 821

Brosseau v. Alberta Securities Commission, [1989] 1 SCR 301

Module 4: Key Concepts in Regulatory Law

In this Module, we discuss some key concepts in regulatory law. We begin with the concept of licensing, which revolves around a ‘suitability’ test for engaging in regulated economic activity and may include ongoing monitoring. We then introduce natural monopoly, one of the core justifications for the regulation of economic activity, and discuss different approaches the state may take to natural monopolies, ranging from direct involvement through crown corporations to regulation with varying degrees of intensity. We move then to common carriage, a body of principles relating to non-discrimination and reasonable access to services that stretches back many centuries, discussing their origins and application in contemporary societies. Lastly, we discuss the so-called regulatory compact, which states that the users of regulated services should pay a fair price whilst the providers should also earn a fair return on their investments. More generally, we will analyze whether the application of these concepts involves policy-making by administrative agencies, with reference to the additional concept of principles-based regulation.

Reading:

Law Society of Ontario v. AA, 2026 ONCA 47

ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 SCR 140

Patchett & Sons Ltd. v. Pacific Great Eastern Railway Co., [1959] SCR 271

Netchoice v Plaxton, Court of Appeals for the Fifth Circuit, No. 21-51178, 16 September 2022

Advocacy Centre for Tenants-Ontario v. Ontario Energy Board, 2008 CanLII 23487

Pong Marketing and Promotions Inc. v. Ontario Media Development Corporation, 2018 ONCA 555

Module 5: Statutory Interpretation

In this Module, we discuss the interpretation of statutes and the discrete challenges involved in understanding regulatory statutes given the dynamic nature of economic regulation. In particular, we will analyze contrasting approaches in Supreme Court of Canada jurisprudence to the interpretation of regulatory statutes. On the one hand, there are cases that treat statutory text as the ‘anchor’ of the interpretive exercise. On the other hand, there are cases that see the role of the interpreter as making sense of text given statutory purpose and context. We will put debates about the role of the principles of statutory interpretation in historical context by returning to a classic text by H. Wade McLachlan on the interpretation of regulatory statutes in the 1980s, an approach criticized as excessively formalist and which has fallen out of fashion.

Reading:

Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15

Lundin Mining Corp. v. Markowich, 2025 SCC 39

McLachlan, “Judicial Review of Administrative Interpretations of Law: How Much Formalism. Can We Reasonably Bear?” (1986) 36 UTLJ

Module 6: Political Control and Policy Alignment

In this Module, we discuss issues of political control and policy alignment between governments and administrative agencies. To begin with, we will note that administrative agencies have no constitutional status in Canada and, as such, do not benefit from any guarantee of independence – their level of autonomy is entirely determined by statute. Accordingly, administrative agencies may be given binding policy directions by government, governments can shape administrative agencies by appointments (and, to a lesser degree, removal) and, in addition, decisions taken by administrative agencies can be reversed by legislation if there is misalignment between a decision and governmental policy objectives. However, both under statute and common law principles, governments cannot interfere in the adjudication of rights and obligations by administrative agencies. To mediate this tension between the need for policy alignment and the need for adjudicative independence, recent legislation has provided for board-governed administrative agencies, ensuring conduits for the communication of government policy without compromising the autonomy of agencies in adjudicating.

Reading:

Innisfil Township v. Vespra Township, [1981] 2 SCR 145

Mondrow, “Why Bother with an Independent Energy Regulator?” (2024) 12 Energy Regulation Quarterly

Bankes and Fluker, “CEO of the Alberta Energy Regulator denies public hearing rights on a coal application” (2025) 13 Energy Regulation Quarterly

Conifex Timber Inc. v. British Columbia (Lieutenant Governor in Council), 2025 BCCA 62

Memorandum of Understanding Between the Minister of Energy and the Ontario Energy Board (2023)

Securities Commission Act, 2021, SO 2021, c 8, Sch 9

Module 7: Policy-making Within Agencies

In this module, we discuss how administrative agencies develop policy, building on previous modules on the extent to which administrative agencies have a policy-making role. We assess the relationship between different groups within an administrative agency in terms of developing policy, such as adjudicators, commissioners, management and staff. We also look at the choice between pursuing policy objectives through individualized decision-making and rule-making, as well as the legal principles that govern collective discussion of live issues in an administrative agencies. Lastly, given the increasingly important role that guidance documents play in achieving the goals of administrative agency, we assess the utility and limits of so-called ‘soft law’ instruments.

Reading:

Iwa v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282

Ainsley Financial Corp. v. Ontario (Securities Commission), 1994 CanLII 2621

Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 FCR 385

Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 FCR 271

Module 8: Consultation and Reconciliation

In this Module, we discuss the legal principles relating to consultation, including in particular the duty to consult with Indigenous peoples that emerges from the Crown’s duty to deal honorably with Canada’s First Nations. Consultation is generally not a legal requirement, as guarantees of procedural fairness do not apply to rule-making, but it is often best practice. The duty to consult has increasingly devolved onto administrative agencies, who are treated as ‘the Crown’ for the purposes of reconciliation. We also consider whether reconciliation is a legal principle that administrative agencies can and should implement, taking into account domestic legislation on the United Nations Declaration on the Rights of Indigenous Persons.

Reading:

Reference Re Canada Assistance Plan (B.C.), [1991] 2 SCR 525

Prado and Xu, “Deference as informed respect: Vavilov’s implications for procedural review of legislative functions” (2025) 75 UTLJ

Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511

Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 SCR 1069

AltaLink Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342

Newman and Renwick, “Uses and abuses of UNDRIP in Canadian courtrooms” (2025) 14 Energy Regulation Quarterly

Module 9: Investigation and Enforcement

In this Module, we discuss the investigative and enforcement powers of administrative agencies and how they interact with the Canadian Charter of Rights and Freedoms. In general terms, the Charter only has moderate impact on the ability of administrative agencies to carry out their functions: the freedom of speech of commercial enterprises or regulated professionals is limited; economic liberty is not constitutionally protected; regulatory searches and seizures can be very broad in scope; and regulatory offences rarely attract the protections of the criminal process. It is only where a regulatory investigation might lead to criminal liability that Charter protections bite with any force. In addition, we discuss the significant scope that administrative agencies have to exercise enforcement discretion.

Reading:

Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685

Re B.C. Motor Vehicle Act, [1985] 2 SCR 486

Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 SCR 425

Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751

Guindon v. Canada, 2015 SCC 41, [2015] 3 SCR 3

Module 10: Adjudication within Agencies

In this Module, we discuss the legal principles relating to adjudication within agencies. These emerge principally from the common law of procedural fairness and also, in different provinces, from framework legislation such as Ontario’s Statutory Powers Procedure Act. We discuss the basic requirements relating to participation in adjudicative proceedings, such as notice, the ability to make submissions, the scope for expert evidence and the extent of cross-examination. We also discuss the concept of ‘active adjudication’ and its limits, as well as the scope for those with adjudicative responsibilities to engage in public discourse. Lastly, in the particular context of decision writing, we return to theme of adjudicative independence and the need for administrative agencies to safeguard adjudicators from external interference.

Reading:

Statutory Powers Procedure Act, RSO 1990, c S.22

Peel Law Association v. Pieters, 2013 ONCA 396

Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518

Flaherty, “Best Practices in Active Adjudication” (2015)

Environmental Appeal Board v. District Director, Metro Vancouver, 2025 BCCA 303

Immigration and Refugee Board, Reasons Review Policy (2021)

Module 11: Judicial Review and Statutory Appeals

In this Module, we discuss the legal principles relating to judicial review and appeals from decisions of statutory agencies. We will lay out the basic framework from the Vavilov decision and note that most regulatory statutes provide for appeals on questions of law. We will examine contemporary debates on the overlap between appeals and judicial review and, in particular, the extent to which the requirements of reasoned decision-making from Vavilov apply to statutory appeals.

Reading:

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653

Manitoba (Hydro-Electric Board) v Manitoba (Public Utilities Board) et al, 2020 MBCA 60

Canadian National Railway Company v. Canada (Transportation Agency), 2025 FCA 184

Module 12: Private Enforcement

In this Module, we deal with private enforcement of regulatory standards. Private enforcement arises where a statute creates a cause of action based on breach of legislated requirements. This has long been a feature of securities statutes in Canada, which create a complete code of potential liability, enforceable through any sort of private law action including a class action. In the competition law context, private enforcement has long been available in respect of criminal offences and, more recently, has been further expanded.

Reading:

Allen v. Aspen Group Resources Corporation, 2012 ONSC 3498

AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 SCR 949

Roach and Trebilcock, “Private Enforcement of Competition Laws” (1996) 34 OHLJ

Hersh and Leonard, “Competition Act: Expanded private enforcement rights now in force” (June 23, 2025)

Module 13: Regulatory Negligence

In this Module, we discuss the ways in which administrative agencies can be held to account through the courts by way of action. In general, there are two broad headings under which liability can exist for the intentional and negligent infliction of harm. Intentional torts such as malicious prosecution or misfeasance in public office can ground a successful action for damages, but these torts require a demonstration of bad faith, often very difficult in a regulatory context. Negligence actions are more common, either in negligence simpliciter or negligent misrepresentation, but also face imposing hurdles. Lastly, it has been suggested that there may be a right of action for damages for severe maladministration, though the existence of this tort has been doubted.

Reading:

Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 SCR 263

Ontario (Attorney General) v. Clark, 2021 SCC 18, [2021] 1 SCR 607

Cooper v. Hobart, 2001 SCC 79, [2001] 3 SCR 537

Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 SCR 562

R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45

Nelson (City) v. Marchi, 2021 SCC 41, [2021] 3 SCR 55

Paradis Honey Ltd. v. Canada (Attorney General), 2015 FCA 89, [2016] 1 FCR 446

This content has been updated on July 13, 2026 at 15:12.