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Administrative - General

Administrative law is something that sounds very boring, and no doubt for some it is, but as time goes by more and more legal issues that matter to people are consumed by it. Residential landlord & tenant, social assistance, (most of) auto insurance, employment, labour, WSIB, planning law and many other varied and important areas of law are all administrative - and they are growing, almost daily.

In my view, the term 'administrative law' is a poor one. A better term would 'tribunal law', as it is by the adjudicative substitution for the courts of any of a number of tribunals that truly defines it.

As more and more of these issues transfer from the courts to administrative tribunals the full impact of the transition has become clear. The well-developed quality of justice that parties had under the courts is replaced with an ill-defined new system that has, inevitably, failed to anticipate the multitude of practice and legal issues that can arise. As well - in this process - tribunal law has enabled the government to shed many of the cultural and constitutional impediments to the government's view of what is procedurally right.

As a consequence, now we face the injustice of the court's devoting hundreds of hours of judicial (and all the labour and expense that goes with it) time to resolving inter-corporate disputes - while the fate of poor, handicapped and otherwise vulnerable citizens (ie. actual people) are allocated in tribunals to a set maximum time (in hours) to determine whether they should retain their housing, or receive government support to enable them to eat. Even before COVID (with it's electronic truncation of procedural practices), the tribunal system had dispensed largely with actual in-person hearings, and so the fate of the citizen could literally hinge on the outcome of a telephone call.

Administrative tribunal law, as a body of legal principles, is just that - the law dealing with the huge transition to this often terrifying new world.

The 'law of procedural fairness', which is so essential to administrative tribunal law, is in reality the category to which all these as-yet undeveloped principles are allocated - that is, whenever a tribunal faces a novel problem they harken to this 'doctrine' [presently and primarily located in the Baker v. Canada (Minister of Citizenship and Immigration) (SCC, 1999) case]. One can view the law of 'fairness' as the nursery of administrative tribunal law, the place that future administrative doctrine grows and develops.

In parallel with the development of the common law doctrine of fairness, the legislature has not been inactive. Most areas of 'admin law' are heavily influenced by the Statutory Powers Procedures Act (SPPA) [the subject of it's own Isthatlegal Administrative Law (SPPA) Legal Guide] - and the statutes, regulations, rules and policy guidelines that govern the particular tribunal you are dealing with. Sometimes (astoundingly) even the forms can be crucial.

Admin law - tribunal law - whatever you chose to call it, can be accurately characterized as a 'brave new world' - with all the cultural connotations that includes. It is by no means a small or minor world for those effected - which is everyone.

. Law Society of Saskatchewan v. Abrametz

In Law Society of Saskatchewan v. Abrametz (SCC, 2022) the Supreme Court of Canada considers the role and rationale of administrative law:
[31] Administrative decision makers regularly decide issues that affect individuals’ rights, privileges and interests. This Court recognized the important role of administrative decision makers in Vavilov, at para. 4:
This area of the law concerns matters which are fundamental to our legal and constitutional order, and seeks to navigate the proper relationship between administrative decision makers, the courts and individuals in our society. In parallel with the law, the role of administrative decision making in Canada has also evolved. Today, the administration of countless public bodies and regulatory regimes has been entrusted to statutory delegates with decision-making power. The number, diversity and importance of the matters that come before such delegates has made administrative decision making one of the principal manifestations of state power in the lives of Canadians.
[32] Legislatures delegate authority to administrative decision makers because of their proximity and responsiveness to stakeholders, their ability to render decisions promptly, flexibly and efficiently, and their ability to provide simplified and streamlined proceedings that can promote access to justice: Vavilov, at para. 29.
. Aggarwal v. Sheridan College

In Aggarwal v. Sheridan College (Div Ct, 2021) the Divisional Court considered generally the standard of review in administrative matters:
[69] With respect to the alleged breaches of the Statutory Powers Procedure Act, an administrative body is the master of its own process. The Court will generally defer to the process adopted by administrative entities, especially when, as here, the tribunal has been given the discretion to develop its own processes. In this case, the alleged breaches are speculative, unsupported by any evidence of prejudice and, even if they took place (which has not been established), do not rise to the level of a violation of natural justice.


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