The Wonders of Administrative Law

I am teaching Administrative Law this term. It is a course I first taught 20 years ago (when Osgoode Hall Law School’s Admin Law maven John Evans, who had taught me the subject, was appointed to the Federal Court, and the Law School had a hole to fill). Since that time, the field has not only sustained my scholarship and professional activities (as an advocate, an adjudicator and as an advisor), but also has served as a wellspring every time I return to teach it. As I once again try to convey my passion for the field to a new class at Osgoode, I thought it as a fortuitous time to reflect on what makes Administrative Law so compelling.

Administrative Law is everywhere. While most fields of law touch your life at specific junctures (Family Law, for example, when your relationship breaks down, or Criminal Law when you are caught up in a crime), Administrative Law is a daily occurrence – a web of seen and unseen threads in which we are all enmeshed. Administrative Law’s primary concern is the accountability of public authority – ensuring that it is exercised fairly and reasonably. Public authority touches every aspect of our life. When we seek a license, permit or social benefit, when we seek admission to the University or release from a hospital, when we renew a passport, vote for municipal councilors, or when we are part of a dispute before a labour board, energy board or landlord and tenant board, the regulation of social and economic relationships by the state reaches virtually all of us, and in multiple ways.

Administrative law also is a remarkably dynamic field. New agencies, board, commissions, tribunals, inquiries and other public bodies are created, merged and re-invented at all levels of government (international, multilateral, federal, provincial, municipal, and Indigenous) faster than I can track. Ontario alone has about 500 such bodies (from the Advertising Review Board to the Workplace Safety and Insurance Board) to which the Government appoints members drawn from all walks of professional and career tracks. Canada’s first online administrative tribunal, BC’s Civil Resolution Tribunal, opened its doors in 2016. Even defining the boundaries of public authority has become an elusive question in eras of public/private partnerships, and spaces that are neither exactly public or private, like the internet. Each one of these bodies has a distinct statutory mandate, composition, set of rules and practices, and a distinct set of individuals and groups affected by its decision-making. Can principles of fairness developed in the context of refugee claims inform the procedures of securities commissions? Often, divining such general principles of Administrative Law (and deciding when to intervene in the administrative decision-making process) falls to the judiciary. As former Supreme Court Justice Louis Lebel memorably cautioned in his first Administrative Law judgment on the Court in Blencoe v. British Columbia (Human Rights Commission) (2000 SCC 44)

[N]ot all administrative bodies are the same. Indeed, this is an understatement. At first glance, labour boards, police commissions, and milk control boards may seem to have about as much in common as assembly lines, cops, and cows! Administrative bodies do, of course, have some common features, but the diversity of their powers, mandate and structure is such that to apply particular standards from one context to another might well be entirely inappropriate. (para. 175)

Because of this diversity of context, and the wide and deep impact these bodies have, it is rare to scan a paper or news feed on any given day, and not come across a new dilemma for Administrative Law. For example, during this first week of the course, Toronto has been grappling with an unsanctioned “pop-up” safe injection site at Moss Park. The site both responds to the opioid overdose crisis in Toronto, and challenges the municipal and health regulatory structures which also have just approved a temporary publicly run safe-injection site nearby. The police indicated they would not intervene immediately as the Mayor and others tried to negotiate a workable solution. All the major themes of the course – the scope and nature of the rule of law, the challenges facing discretionary decision-makers, the interpretation of statutes and by-laws, and the implications of political, social, historical, geographic and cultural contexts – are captured in these real-time developments, together with vivid illustrations of the human impact of regulatory and administrative decisions.

Not only does the Administrative Law course address new issues every year, it also varies by the experience and perspective of the person teaching (and the students in the class). I have had the good fortune to co-teach with others on several occasions – including Justice Deena Baltman of the Ontario Superior Court, David Wright, Chair of the Law Society Tribunal, former Deputy Attorney General Mark Freiman and University of Toronto Law Professor Andrew Green. I have learned a tremendous amount from each, in addition to the community of other Administrative Law faculty around Canada and around the globe. I have had the opportunity on several occasions to teach and learn Administrative Law in the professional LL.M. program at Osgoode Professional Development (OPD), where students are often experienced counsel or other professionals in the field.

Developing materials for these Administrative Law courses has offered yet another opportunity for creative engagement with the field. Indeed, this Fall will also mark the completion of the 3rd Edition of Administrative Law in Context (Emond Montgomery) I co-edit with Colleen Flood, which brings together a stellar group of contributors from around the country, this year, for example, adding new chapters on Crown liability and Aboriginal Administrative Law.

There is a quality about Administrative Law that is both specific (what does fairness look like on a particular day, before a particular decision-maker, in light of the particular party, and under a particular statute or rules?) and universal (what is fairness? Is it about equality with the treatment of others, or our inherent human dignity? Is it demonstrated through objective truth or subjective experience or bits of both?).

For all these reasons, Administrative Law remains a work in progress – and twenty years in, I feel my classes only have started to scratch the surface of the field. I look forward to learning with and from my students again this year, and for many years to come. In short, if you care about justice and fairness, if you are captivated by the complexity of the human experience, if you share a desire to hold public decision-makers to account, if you are looking for how democracy and the rule of law work in action, and if you seek to use law to build a better society – Administrative Law is for you!