THE MAIN FEATURES OF CANADIAN ADMINISTRATIVE LAW

1. LEGAL FOUNDATIONS OF JUDICIAL REVIEW

1.1. PARLIAMENTARY SOVEREIGNTY UNDER THE CONSTITUTION AND THE RULE OF LAW A. The political system of Canada is based on the parliamentary model. This regime is derived from the British public law institutions. Reference is made to the British political tradition in the Constitution of Canada. British conventions and judicial precedents are still used, whenever relevant, to interpret and complete the Constitution. The parliamentary regime implies the principle of sovereignty of the legislative assemblies. The Parliament of Canada, and provincial legislatures, may adopt laws as they please, while the courts, and the Executive, must give effect to legislative intent and apply these laws. Contrary to countries like France and, to some extent, the U.S., where the Executive possesses special powers which it may use independently of Parliament, the Canadian legislatures may fully occupy the field and deny the Executive, and, for that matter, the courts, from encroaching their sovereign power. But there exists an important restriction on the principle of sovereignty of Parliament. Contrary to the United Kingdom, which has no written constitution, Canada is governed by constitutional laws. Legislative power must be exercised within the framework of constitutional rules. So the Parliament of Canada and provincial legislatures may only act in matters on which they have jurisdiction under the Constitution, as interpreted by the courts. Furthermore, the Constitution provides for fundamental rights and freedoms, as well as other guarantees (minority language rights, recognition of aboriginal rights). However, the Constitution allows the legislative assemblies to use, in special situations, a derogatory power to restrict some fundamental rights. This unique power has seldom been used. The Constitution also allows legislators and

/2

governments to restrict a fundamental right but the courts will have the last say as to the legality of such restrictions. Criteria have been devised to consider the arguments put forward to justify such restrictions.

B. The principle of legality, or rule of law, constitutes an unwritten principle of the Constitution. This principle requires that all State actors (whether legislative, administrative or judicial) act within a framework composed of: 1. the express and implied provisions of the Constitution 2. fundamental (or quasi-constitutional) laws, and all other legislative enactments 3. the general principles of administrative law, used to interpret and complete legislation 4. regulations and other binding legal texts of a general nature, adopted in virtue of a legislative provision and which must conform to general principles of law. In Canada, contrary to France and other European countries, international treaties and conventions are of no legal effect in domestic law, unless there is clear legislative intent to give them such effect. However, international agreements ratified by Canada (but not yet integrated in domestic law) may be used as an interpretative tool. Legislatures and governments are presumed not to act in contravention with the international obligations of Canada. This presumption may be reversed by a clear legislative provision to the contrary.

1.2. CONSTITUTIONAL STATUS OF SUPERIOR COURTS AND THE SUPREME COURT Contrary to European and other countries where the court system is based on the French model, there is no distinct system of administrative courts in Canada. The Canadian model is rather influenced by the British system, which has inspired other Anglo-Saxon countries, and many members of the British Commonwealth. The same courts will hear private law cases, as well as public law ones. Indeed, superior courts in Canada have jurisdiction in civil, commercial, criminal, administrative and even constitutional law matters.

/3

Under the Constitution of Canada, the administration of justice falls under provincial jurisdiction. Provincial legislatures may thus provide for court organization and procedure. But the Constitution contains specific provisions to protect the independence of superior courts (and courts of appeal). Canadian superior courts have inherited the inherent powers and jurisdiction of the English Court of Kings Bench, which, historically, assumed the task of supervising public administration. In Canada, the superior courts have a greater role, since they also insure the compatibility of laws (statutes) with the Constitution. Even though superior courts are organized by the provinces, members of these courts are appointed and paid by the federal government. Therefore, the court does not depend on a single level of authority. The Constitution also allows the federal Parliament to create additional courts having jurisdiction over federal statutes. This led to the creation of the Federal Court, and the Federal Court of Appeal, as well as the Taxation Court of Canada. The Constitution also provides for the establishment of a Supreme Court of Canada. Created by Parliament, the court exercises final appeal jurisdiction over all cases decided by courts and tribunals. Supreme Court members are appointed by the federal government, but they are representative of all parts of Canada. Moreover, three of the nine members are civil-law trained, to take into account the civil law tradition of Quebec. There are few Supreme courts which hold so much power, with the possible exception of the British Judicial Committee of the House of Lords. Even the U.S. Supreme Court does not possess full appeal jurisdiction over judgments rendered by State (as opposed to Federal) courts. In continental Europe, one finds two or three supreme courts in most countries. For instance, in France, there exists a Constitutional Court, a Council of State (administrative law), and a Court of Cassation (civil and criminal law). The following chart indicates how the Canadian court system works:

/4

SUPREME COURT OF CANADA

FEDERAL COURT OF APPEAL

PROVINCIAL (AND TERRITORIAL) COURTS OF APPEAL

FEDERAL COURT

SUPERIOR COURTS

FEDERAL TAXATION COURT AND ADMINISTRATIVE TRIBUNALS

PROVINCIAL INFERIOR COURTS AND ADMINISTRATIVE TRIBUNALS

JUDICIAL REVIEW

APPEAL

1.3. IMPACT OF THE CANADIAN CHARTER OF HUMAN RIGHTS AND FREEDOMS AND QUASI-CONSTITUTIONAL HUMAN RIGHTS
LEGISLATION ON ADMINISTRATIVE LAW

Since laws are sometimes written in general terms and do not fully provide for procedural and substantive safeguards, first the British and then the Canadian superior courts have given legal recognition to some social values which have been transformed by the courts into general principles of law. These principles

/5

are aimed at preserving some measure of equality, fairness, and reasonableness in the administrative process. However, legislatures have been able, by adopting clear legislature provisions to that intent, restrict or discard these general principles. Since legislation has precedence over case law, Parliament had the last word. Since 1960, the situation has evolved, with the adoption by the Parliament of Canada of the Canadian Bill of Rights. It is a fundamental law which supersedes other federal legislation, unless there exists a clear legislative exception (which is a rare occurrence). Some general principles of administrative law, such as the right to a hearing and the principle of impartiality, were incorporated in this Bill of Rights. Other federal and provincial fundamental (or quasi-constitutional) statutes have been adopted since, the most extensive being the Quebec Charter of Human Rights and Freedoms, which is based on the European Convention on Human Rights. Since 1982, a new Constitutional Act has been in force. It contains a first part entitled the Canadian Charter of Rights and Freedoms. This constitutional charter is aimed at legislative and governmental action at all levels. It contains procedural guarantees applying to persons whose right to life, freedom, and security may be at stake. It also provides for equality before the law by prohibiting several types of discrimination. To the extent that general principles of administrative law are codified in these constitutional and quasi-constitutional laws, they are conferred a higher legal status, since all laws (and not only regulations and administrative decisions) will have to conform with them. This transformation has given an extended mandate to the courts. They will be able to exercise an extended supervisory role over legislation, to the benefit of citizens and groups who feel aggrieved by state action.

1.4. CONSTITUTIONAL LIMITS TO PROVISIONS PURPORTING TO

EXCLUDE JUDICIAL REVIEW

Since the Constitution is the ultimate legal norm, Canadian legislatures cannot prevent the courts from exercising their supervisory role in constitutional law matters, except where the Constitution itself permits the adoption of a measure which would otherwise contravene a constitutional right or freedom.

/6

But legislatures have often adopted provisions which restrict judicial review of governmental action. At first glance, one may ask why a legislative assembly would prevent the courts from accomplishing their role as guard dogs of the legislature. Indeed, the role of the courts is to insure that all public decisionmakers act accordingly to the intent and letter of the law. However, government departments and administrative agencies are not keen on being checked at every corner by judges who have, by and large, no specialized knowledge of public administration and are completely independent from the legislative and executive powers. In some sectors, such as labour relations and professional and trade selfregulation, specialized tribunals and arbitration boards have been set up. Many members of these tribunals and boards are drawn from those same groups, who often participate in the appointment process. Statutes, regulations, and agreements in those sectors reflect a delicate equilibrium between competing interests. So trade unions, as well as employers and professional associations, are not always adverse to restrictions on judicial review, so as to protect the autonomy of their dispute and disciplinary resolution mechanisms. Another factor which must be taken into account at the provincial level is the fact that superior court members are appointed by the federal government. This may incite a provincial legislature to grant an appeal jurisdiction to a provincial inferior court or tribunal, leaving the superior court with only a narrow supervisory power over judgments or decisions rendered by that entity. Confronted with these trends, the Supreme Court of Canada held that: 1. the supervisory power of the superior courts over government cannot be abolished since that mandate is enshrined in the Constitution. It is required as a corollary to the principle of legality; 2. that power cannot be transferred, directly or indirectly, to an administrative entity which is not fully independent from the Executive; 3. it cannot be conferred to a provincial court whose members are not appointed by the federal government, as required by the Constitution; 4. it is possible to restrict judicial review by specifying that some grounds for review (minor procedural irregularities, errors of law of a technical character, most errors of fact) are not available;

/7

5. it is also open to legislatures to confer wide appeal jurisdiction, including jurisdiction over questions of law, to inferior courts and administrative tribunals, provided that judicial review by superior courts is allowed on jurisdictional grounds (which include lack of jurisdiction, procedural unfairness, abuse of power, and manifestly unreasonable measures).

2. THE SUPERVISORY JURISDICTION OF THE COURTS OVER PUBLIC ADMINISTRATION

2.1. THE SUPERVISORS AND THEIR ROLE: FEDERAL COURTS, PROVINCIAL SUPERIOR COURTS, INFERIOR JUDICIAL COURTS,
ADMINISTRATIVE TRIBUNALS

A. Judicial control of administrative action is exercised by way of a right of appeal provided for by statute or through the general power of judicial review attributed to superior courts by the Constitution (and the Federal Courts Act). When a court is seized of an appeal, it may substitute its own decision to the decision rendered by the administrative decision-maker. It may also send the case back to the responsible public entity so that a new decision be made in accordance with law. On the other hand, judicial review only allows for a control of the legality of administrative action (or omission). The court will not substitute its own evaluation of the evidence nor its appreciation of the decisional factors. It cannot replace the initial decision by its own unless the decision-maker had no discretion but to take a certain course of action (for instance, issue a licence or grant a social benefit). Whenever some form of discretion is left by law to the decision-maker, the case will be sent back for a fresh determination by the legal competent authority. This power has some similarities to the recourse in cassation in European law.

B. The control of the legality of federal administrative action has been conferred almost exclusively to the Federal Court of Canada. That court possesses specialized jurisdiction in fields like maritime law, and trademark disputes. It has also been conferred by law an appeal jurisdiction in some matters. Finally,

/8

it hears applications for judicial review concerning all federal boards and tribunals, with the exception of some tribunals whose decisions are directly reviewed by the Federal Court of Appeal. These two courts are the closest thing in Canada to an administrative court since a substantial part of these courts work concerns administrative and public law issues, while superior courts only occasionally determine such issues.

C. Superior courts have an inherent supervisory jurisdiction over governmental action. This means that their power to consider applications for judicial review does not need to be expressly stated in a legislative provision, since its legal foundation is found in the Constitution. That jurisdiction extends to all public entities fully under the territorial limits of a particular superior court, except for the general exception provided for by the Federal Courts Act. Judgments rendered by the superior courts may be appealed as of right, or upon permission, to the Appeal court of that province.

D. Inferior courts and administrative tribunals play a limited role in controlling the legality of administrative action. Some statutory provisions confer a right of appeal from an administrative decision to an inferior provincial court or to a specialized administrative appeal tribunal. These recourses must, in practice, be used instead of making an application for judicial review to a superior or federal court. It is the decision rendered on appeal which may be subsequently challenged by way of judicial review. An alternative method of controlling the legality of an administrative measure is by way of defence to civil, criminal, or administrative proceedings undertaken before an inferior judicial court or an administrative tribunal or agency. This is recognized by the courts as a principle of fundamental justice. In such a situation, the inferior court or tribunal will consider whether the statute or regulation on which the proceedings are based is illegal. If it is determined that the challenged norm is indeed illegal, the court or tribunal will not apply it. It will rather consider that it is inoperative in that particular case. However, that determination cannot be used in other cases, contrary to a final judgment of a superior (or federal) court which declares that a law or regulation is null and void.

/9

Not all administrative agencies may consider an argument based on the illegality of an enabling norm. According to the Supreme Court of Canada, there are four requirements for exercising such a power: 1. the agency or tribunal has been statutorily conferred, expressly or implicitly, the power to determine questions of law in the exercise of its functions. 2. it benefits of a wide autonomy in the exercise of these functions, not being submitted to political control of its decision-making process. 3. the question of law is closely related to the exercise of its decisionmaking power. 4. the procedure used, as well as the content of the file, is adequate to make a determination of that question. If those requirements are not met, a competent court or tribunal will be seized of the question by way of appeal or application for judicial review.

2.2. THE POWERS OF THE COURTS Judicial review of administrative action requires that a court posses the tools needed to exercise its supervisory role. It must be able to grant adequate remedies to the applicants, depending on the outcome of the case, and it must ensure that its judgments are complied with by the respondent (a public entity). A. Superior courts have been recognized all inherent powers necessary to exercise their constitutional mandate of judicial review of administrative action. These powers are often conferred by law but they are, more generally, inherent to the exercise of the function. The rationale is that without these powers, judicial review would not be effective, and therefore, the Constitution would not be respected. Some of these powers concern: 1. the grant of a provisional injunction or order to prevent the government from enforcing at once the measure which is challenged before the court, or to restore a right which has already been affected by that measure. Factors to be taken in consideration by the court are 1- the seriousness of the arguments made in support of the application for judicial review 2-

/10

the irreparable harm that would be incurred by the applicant if such a safeguard order is not granted 3- the public interest, if the first two factors do not allow for a clear yes or no answer. Conditions may be attached to such a provisional order; 2. The transfer of the file and the production of witnesses, when the government does not cooperate fully with the applicant in giving access to all the relevant evidence.

B. If the court arrives at the conclusion that a public entity has acted illegally, it may grant remedies needed to give adequate redress to the aggrieved applicant. Thus, in an appropriate case, it may grant: 1. a declaration of invalidity of the challenged measures, whatever its nature: statute, regulation, directive, administrative decision; 2. a declaration of applicants right, forcing the government to recognize and give full effect to that right; 3. an injunction requiring a public entity to fulfill a duty imposed by law or to abstain from acting in contravention to the law; 4. damages in situations where the applicant has suffered a personal prejudice due to an abuse of power, or the violation of a fundamental right enshrined in the Constitution or a quasi-constitutional law, or negligence in the pursuance of a purely administrative function; 5. judicial costs to reimburse an applicant of some expenses and legal fees incurred; 6. a delay in the enforcement of a legal measure where immediate action would entail unnecessary substantial inconvenience to a citizen.

C. To insure that judgments of the courts are complied with, the superior courts possess an ultimate weapon, that of condemning the defendant with a contempt of court order, after giving that party a full hearing where it may try to justify its inaction. Such orders will impose sanctions such as fines or imprisonment. There is no State immunity concerning a contempt of court order. In practice, a final judgment of a court of justice binding the government has always been

/11

complied with. This is not always the case in other countries. For instance, in France, the government may choose not to execute a judgment rendered by an administrative court. The only available remedy will be a grant of damages against the State for non-execution.

D. Inferior courts and administrative tribunals only possess the powers which are conferred to them by law. But a superior court may, upon request, intervene to fill that gap and thus cooperate to insure the efficiency of the administrative justice system.

2.3. THE DISCRETION OF COURTS When it is seized of a case by way of an appeal, a court has little discretion to refuse to hear that case, unless it has no jurisdiction over that appeal, the procedural requirements have not been complied with, or the case itself has no legal basis whatsoever (giving rise to a petition for a preliminary dismissal of the appeal). Judicial review applications are different since the courts are entitled to use discretion in the exercise of their supervisory power. In civil and criminal law cases, the court has to render judgments on the merits of the suit. Faced with an application for judicial review, a superior (or federal) court may take into account several factors to determine whether it will intervene to hear the case on the merits or grant the requested remedy. These factors include: 1. the nature and importance of the illegality. Allegations of mere procedural irregularities, having no adverse impact for the applicant, as well as technical errors, may be discarded at a preliminary stage; 2. the lack of legal interest by the applicant. The court will not decide a case where the applicant is not personally affected by the challenged measure, or where there is no public interest at stake; 3. the lack of a justiciable issue. This may happen when the grounds for review are political rather than legal, where the issue has become moot, or when the remedy sought would be of no practical effect;

/12

4. the existence of a state of necessity. This concerns exceptional situations where the grant of a declaration of illegality or an injunction would create an anarchical situation, such as to create a legal void. In that case, the court might grant a delay allowing the government to modify or replace the illegal measure but permitting its enforcement in the meantime; 5. the existence of alternative forums, an arbitration board for instance or, more generally, the non-completion of all steps or avenues of redress provided for by the relevant legislative provisions; 6. the conduct of the applicant who is acting in faith, for an ulterior motive, or who has not introduced his or her application for judicial review within a reasonable delay (normally 30 days from the reception or knowledge of the measure, except where there are serious reasons justifying a longer delay).

3. THE GROUNDS FOR REVIEW

The types of illegalities which give rise to judicial review in Canada are not dissimilar to the grounds developed in other jurisdictions, such as the U.S., France, and other European countries. Initially, these grounds for review were those developed in English law. Recently, the Supreme Court of Canada has distanced itself from the British courts. For instance, Canadian administrative law does not recognize fully that the principle of legitime expectation has a substantive (and not only a procedural) element. Canadian courts are also more deferential to administrative tribunals and government agencies in controlling errors of law and errors of facts in administrative decisions. The grounds for review may be classified (in a somewhat chronological order) as follows: 1. conditions pertaining to the existence of a decision makers legal competence; 2. procedural guarantees in the decision-making process; 3. errors of law or facts in the measure itself.

/13

3.1. CONDITIONS PERTAINING TO THE EXISTENCE OF A DECISION MAKERS LEGAL COMPETENCE Some of the conditions relating to the initial legal competence of an administrative agency or tribunal are quite obvious and exist in all administrative law regimes: regularity of the nomination and the required qualifications of a decision-maker, existence of a quorum, legal foundation of the discretionary power to be exercised, whether a person is subject to the decision-makers jurisdiction, whether some preliminary steps have been followed. Some general principles of Canadian administrative law may be worthy of mention. a discretionary power must be exercised only by the person or persons expressly mentioned in the enabling legislation. However, ministers may act through representatives, provided that these representatives are given directives precising the decisional factors to take into account and that ministers remain ultimately responsible for all decisions taken on their behalf; an administrative tribunal must be independent from political control in its adjudicative role. This principle has been partially recognized in the constitutional Charter of Rights and Freedoms and, more widely, in quasi-constitutional laws such as the Canadian Bill of Rights (a federal statute); a legal norm (of a binding character) must be sufficiently clear and precise so that a person may know his or her rights and obligations; a final administrative decision cannot be modified (thus affecting acquired rights) unless: it is illegal (allowing the decision-maker to discard it and make a new decision in the case at hand) legislation provides for administrative review of decisions for cause or on specified grounds

/14

the decision-maker has been conferred continuing jurisdiction over a matter and may modify past decisions of its own initiative or upon request.

3.2. PROCEDURAL GUARANTEES IN THE DECISION- MAKING PROCESS A. In all administrative law systems, a general principle of law requires that a person be given an adequate possibility to state his or her case when a) the rights of this person are at stake and b) the decision-maker is a tribunal or possesses some attributes of a tribunal (an adversary-type procedure, for instance). In U.S. law, the principle of due process goes farther since it requires such guarantees from the State whenever an individuals rights are to be specially affected by an administrative measure.

B. Canadian administrative law provides for an even wider principle. Inspired by English case-law, the Supreme Court of Canada has stated in a series of judgments that a duty to act fairly and impartially applies in al situations where an administrative decision may have important consequences for an individual (or a small group of persons). Fairness requires that a person be given advance information of facts and factors which may be (at least in general terms) detrimental to his or her interests, as well as an adequate possibility to reply to the competent administrative agency. That agency must keep an open mind so as to be able to change its stand if new facts or arguments are put to its attention by the aggrieved person or persons.

C. Fundamental and other laws, as well as regulations and administrative practices, may provide for more detailed requirements. The duty to act fairly is a common denominator which gives a person minimal procedural guarantees, to which may be added those expressly provided by a relevant legal text.

/15

D. The content of the duty to act fairly may vary according to several factors: 1- the nature of the decision (adjudication relating to a factual situation or a political choice made in pursuance of the public interest; 2- the finality of the decision (as opposed to a decision subject to further review or appeal); 3- the importance of the consequences for affected persons; 4- the legitimate expectation of those persons that some form of participation in the decisionmaking process is available to them; 5- the institutional constraints subjecting the decision-maker, such as the need for celerity. The general principle of fairness contains basic requirements, to which additional ones may be added, depending on the relative importance of the five above-mentioned factors.

E. The first requirement is the right to be heard. This implies (a) an advance notice by the responsible public authority of its intent to take a particular course of action or to make a decision concerning a specified matter; (b) the reception of adequate information to allow the individual concerned to make his or her representations; (c) an adequate procedure for the presentation of this individuals point of view. There is no general need for a hearing unless a legislative rule provides for it or where such a hearing is indispensable, for instance for establishing the credibility of a witness or interrogating the author of a report. The assistance of a lawyer is not mandatory in all proceedings, but only when the right to a lawyer is recognized by law, or is essential in a given context to achieve procedural fairness.

F. As mentioned before, fairness also requires that a decision-maker be impartial. Standards of impartiality vary according to the above-mentioned factors. Generally, a public official will be disqualified from participating in a decision where there exists a reasonable suspicion that the official is biased. When the decision is of a more administrative or political nature, impartiality will only require that the decision-maker keep an open mind.

/16

Types of bias include traditional ones (family, social, and professional relationships, friendship or animosity), as well as others that are more peculiar to administrative law. Those concern the interests of part-time members of a tribunal or regulatory board, past activities of full and part-time members having an impact on the case at hand, conflicts between different roles played by a public official in the decision-making process, such as acting as a prosecutor and then as an adjudicator in the same case.

G. Finally, Canadian administrative law recognizes a general duty to give reasons, so as to allow the affected person to evaluate the possibilities of instituting proceedings for an administrative or judicial appeal or review. Depending on the five factors already mentioned, reasons will have to be more or less formal.

3.3. REVIEW OF LEGALITY OF ADMINISTRATIVE MEASURES A. A traditional ground for judicial review of general and individual administrative measures is abuse of power. This concerns situations where a government agency acts outside the frame of enabling legislation, or for a purpose or reasons foreign to the power exercised. Another traditional ground is illegal discrimination. A distinction between persons or categories of persons is allowed, provided that it is expressly or implicitly recognized by law. Such distinction must also be compatible with the fundamental rights to equality enshrined in the Constitution and in other fundamental laws.

B. In several European (and other) countries, administrative jurisdictions, instead of judicial courts, control the legality of administrative action. Members of administrative courts are often drawn from the ranks of civil servants, even though they are fully independent from the government in their adjudicative role. Such courts show little or no deference to administrative agencies since they are themselves part of public administration, even though they play a special role and are granted a complete autonomy.

/17

Therefore, all errors of law, as well as all manifest (or evident) errors of facts are susceptible to be annulled on the ground of excess of jurisdiction. The situation is somewhat different in countries where the ordinary courts handle judicial review applications. Members of the judiciary are generalists, not specialists. The courts are completely outside public administration. The separation of powers between the Judiciary and the Executive is more pronounced in Anglo-Saxon countries than the separation between the Executive and Parliament. The U.S. Supreme court will annul an administrative measure for error of law if that error is evident or if the interpretation given to a legal norm is not permissible. Decisions tainted with errors of facts will be valid provided there exists substantial evidence to back the challenged decision. In English law, the courts will sanction most errors of law as well as unreasonable errors of facts. Canadian administrative law recognizes that unreasonable regulations adopted by local authorities or decentralized agencies may be quashed for illegality. It does not appear to extend that ground to government regulations, unless there is evidence of bad faith. As for individual measures, the Supreme Court of Canada has developed a pragmatic and functional approach. That approach considers four factors which are evaluated globally to determine the appropriate standard of review in a particular case. [SEE CHART]

/18

DETERMINATION OF THE DEGREE OF REVIEW UNDER THE PRAGMATIC AND FUNCTIONAL APPROACH
General factors Particular factors Applicable degree of control Types of reviewed errors error pertaining to the frame of the statute Statutory restraint to review General context
MERE ERROR

or error of interpretation concerning a general question of law determination made in an arbitrary manner, or made without regard to the evidence or to the general values circumscribing discretion or

Nature of the problem Degree of expertise

EVIDENT OR UNREASONABLE ERROR OR MANIFEST ERROR

MEASURE
UNDER REVIEW

evident error of fact or law, taking into account the degree of deference interpretative error concerning a technical question

PATENTLY UNREASONABLE ERROR

or application of a rule to a factual situation

/19

These four factors are: 1. the existence (or absence) of a statutory provision restricting judicial review. 2. the purpose of enabling legislation. There will be more deference when a decision is made in the pursuance of economic and social policies, and less when the decision-maker defines the rights of an individual. 3. the nature of the problem. A great deal of deference will be shown to factual determinations, as well as the interpretation and application to a particular situation of technical rules. 4. the level of expertise of the author of the decision, as compared with the corresponding expertise of a judge. Courts will be presumed to have more expertise than administrative tribunals and agencies to determine questions of law, especially when the questions are of a general character. This will lead the court to apply one of the three standards of review: patent unreasonableness, mere unreasonableness, and correctness. Correctness allows the court to substitute its decision to the initial decision. No deference is shown to the decision-maker. Unreasonableness concerns errors which are manifest and evident. The deference shown to the decision-maker is quite similar to the attitude shown by an appeal court in relation to a factual determination made by a trial judge. Finally, patent unreasonableness is reserved for situations where the reviewing court has little expertise. It will intervene if the decision is manifestly unjust, contrary to common sense, or is not based on relevant evidence. The pragmatic and analytical approach is highly subjective. A decision which is qualified of being patently unreasonable (contrary to common sense) by one judge may be seen as a correct one for another judge! For this reason, that approach has been criticized, even by some members of the Supreme Court of Canada.

/20

CONCLUSION
Canadian courts and tribunals are particularly well equipped to exercise a control of legality of administrative action. They can intervene efficiently to grant adequate remedies to interested citizens and groups where an illegal act has been committed. General principles of administrative law have been developed and are continuously updated to take into account societal changes and corresponding changes in the role of public authorities. Judicial review of jurisdictional as well as procedural questions manifests an interventionist attitude from the courts. However, the courts are more deferent when they are confronted with challenges concerning errors of law or facts. Some uncertainty remains as to the limits of judicial intervention in that respect.

DENIS LEMIEUX Faculty of Law Laval University Counsel Tremblay Bois Mignault Lemay