ADMINISTRATIVE LAW OF CANADA

The Administrative State and Rule of Law

What is Administrative Law about?- T h e s u b j e c t m a t t e r o f a d m i n i s t r a t i v e l a w i s t h e l a w g o v e r n i n g
t h e implementation of public programs, particularly at the point of delivery,where they are likely
to have their most immediate impact on the lives andrights of individuals. Most of these
programs are administered under theauthority of a statute.-These programs originate in
the identification by government of a problemcreated by or not adequately addressed
by the operation of the market orprivate law.- H a v i n g i d e n t i f i e d t h e p r o b l e m ,
g o v e r n m e n t m a y r e s p o n d i n a n u m b e r o f ways: it may decide to do nothing; to deal
with the problem through existinglegal tools and institutions; or to create a new legal framework,
administeredby some agency other than the courts of law, designed specifically for thispurpose.
The adoption of the third option is the real of administrative law.
The Administrative State: Delivering Public Programs
- S t a r t i n g w i t h t h e R e g a n a n d T h a t c h e r a d m i n i s t r a t i o n s i n t h e
1 9 8 0 s , government in many parts of the industrialized world experienced a revival of faith in
market solutions. Deregulation, privatization, and lower taxes havebeen the principle rallying
cries.-The globalization of the economy, including Canadas membership in
NAFTA,also constrains the ability of governments to design and deliver programs of economic
regulation and social benefits. The Subject Matter of Public Administration:-The following is
not a comprehensive list of public programs. However, thefollowing exemplify areas of
activity which have often given rise to litigationunder administrative law principles.
1-Employment
2-Regulated industries
3-Economic activities
4-Professions and trades
5-Social control
6-Human rights
7-Income support
8 -Public servicesSome analytical distinctions may be drawn among this heterogeneous
a r r a y of programs. First, some achieve their aim by regulation a relationship between private
persons. Other public programs operate by requiring individuals to obtain approval from a
governmental body before embarking on a course of conduct. They may also be distinguished
by whether they achieve their objectives by conferring benefits on individuals or imposing

restrictions on otherwise lawful activities welfare v. regulation

Institutions of the Administrative State:
Legislatures
-From a legal point of view, nearly all public programs originate with a statute
enacted by either the provincial or federal legislature to create new legalrights and duties.
-As such, the legislatures will have a role to play in its subsequent
administration. For example, the legislature may consider regulations made by the Cabinet, or a
minister, under a power delegated by the statute to flesh out the often bare-bones terms of the
legislation. Additionally, the minister responsible for the particular program may be questioned in
the legislature about its operation.
Cabinet and ministers
-The governor (or lieutenant governor) in council, or individual minister, maybe
empowered to supplement the statute with delegated legislation. In addition, the ministers,
through departmental officials, may exercise discretionary powers that directly affect individuals.
The minister will normally be responsible for appointing the departments members.- S o m e
statutes provide a right of appeal to the Cabinet from decisions
o f independent agencies Ex. CRTC-In addition, through its control of the allocation of
funds, the Cabinet plays a decisively important role in determining the shape and scope of
public programs.
Municipalities
-Some of the programs that have the most frequent impact on people
a r e administered at the local level of government.-The elected members of
municipal councils debate and pass the by-laws andresolutions at public meetings.However, municipalities are subject to a measure of provincial control inthese areas:
standards may be set by the enabling legislation, ministerial policy directives or guidelines or by
the terms on which provincial funding isprovided.
Crown corporations
-Crown corporations enjoy substantial independence in their day-tod a y operations so that they can make commercial decisions without government interference.
-However, through the power of the purse, and the appointment of
i n d i v i d u a l s to the board of directors, the government exerts considerable influence
overthem.
-These bodies operate on the fringes of public and private law in the
s e n s e that they may compete with privately owned corporations, much of their decision
making will be based on commercial principles, and their legal relations with suppliers and
customers are governed by contract.-However, they also have governmental
characteristics: for example, they are established by statute, they are in public ownership,
their boards are appointed by government, and they report to the legislature through the