Book NoteRecension simple

Colleen Flood et al., eds., Administrative Law in Context (Toronto: Emond Montgomery, 2008), pp. 439.[Record]

  • Joshua A. Krane

Whereas the book’s aforementioned organization is commendable, the apparent decision not to delay publication following the Dunsmuir ruling is problematic. It came at an especially inopportune time for Professor Audrey Macklin, the author of “Standard of Review: The Pragmatic and Functional Test” (Chapter 8). Dunsmuir is most notable for replacing the pragmatic and functional approach with the new standard of review analysis, streamlining the number of standards of review (from three to two). It is unfortunate that Macklin, and other affected authors, did not have an opportunity to fully integrate the decision into their contributions. Nevertheless, in spite of Dunsmuir’s absence, Macklin’s chapter does provide a fruitful account of the evolution of the Court’s explanation of standards of review. Moreover, the SCC (in Dunsmuir) was divided on the best approach going forward. The cases Macklin considers, and the analysis she provides, should thus continue to be relevant for critically assessing and understanding future standard of review developments. The text does not expressly address the relationship between administrative law, policy, and practice. In particular, the editors devote inadequate attention to the role of administrative agents and agencies. This is a serious shortcoming. A lawyer cannot engage an administrative agent on behalf of a client without a confident understanding of how that agency is empowered to operate. The structure of the administrative state is established primarily by statute. One of the key tasks for any lawyer who practises administrative law is to understand how to navigate administrative bureaucracy by locating sources of authority and discretion within enabling pieces of legislation, many of which are lengthy and complex. Enabling legislation sets out the mandate of the enabled agency, the hierarchical structure of its decision makers, its policy objectives, the powers and duties of its agents, and sanctions for non-compliance. A number of Canada’s most powerful and important administrative agents and agencies receive little or no treatment. Little space is devoted to the role of ombudsmen or freedom of information commissioners: intermediaries between administrative agents and the public who use influence and non-adversarial strategies to resolve conflicts. There is no discussion of how Crown corporations—some of the country’s largest, most well-funded, and most complex administrative agencies—work. Nor does the text explore future growth areas of the administrative state, such as public-private partnerships. By contrast, the editors devote significant space to the procedures for obtaining remedies against unlawful exercises of authority by members of administrative tribunals. The editors also fail to include a discussion of one of the more pressing issues in administrative law today: the competition for authority among administrative agencies. Nowhere has that issue been more evident than in the recent case of Tranchemontagne v. Ontario (Director, Disability Support Program). Despite a provision in the Social Benefit Tribunal’s enabling legislation which prohibits the Tribunal from applying the Canadian Charter of Rights and Freedoms in its interpretation of its enabling legislation, the majority of the Supreme Court of Canada held that the Tribunal could apply the Ontario Human Rights Code when deciding questions of law. Similar examples of this problem can be seen in disputes between the Canadian Radio and Television Commission (CRTC) and the Canadian Broadcasting Corporation (CBC), and between public authorities publishing official marks and the Registrar of Trade-marks. By focusing on the judicial and adversarial aspects of the administrative process, the editors of Administrative Law have missed a wonderful opportunity to address other formal and informal kinds of interaction with administrative agents. Even the chapter dedicated to public inquiries spends considerable time discussing fairness issues related to independence and bias, standing, representation, and notice. These issues are of …