Developments in Administrative Law: The 1997-98 and 1998-99 Terms

Supreme Court Law Review, Vol. 11, No. 2, pp. 37-100, 1999

33 Pages Posted: 16 Jun 2008

See all articles by Lorne Sossin

Lorne Sossin

York University - Osgoode Hall Law School

Abstract

The Supreme Court of Canada's contribution to administrative law during the two terms which are the focus of this review has been widespread and, for the most part, welcome. The Supreme Court issued eight judgments with a significant impact on administrative law in the 1997-98 and 1998-99 Terms. The cases from these two terms are discussed under four broad headings: standard of review, procedural fairness, jurisdiction of inquiries and collateral attacks.

Under the first heading is a review of the Supreme Court's attempt to refine and clarify the test to be applied in determining the proper standard of review of administrative decision-making. During these two terms, the Court has succeeded in extending the pragmatic and functional approach into an overarching framework within which all questions of judicial review may be situated. Whether such an expansive, elastic and all-encompassing framework can provide sufficient guidance to lower courts and affected parties, however, remains in doubt.

Under the second heading is a review of the Court's continuing development of the requirements of procedural fairness in Canadian administrative law. The Court's judgment in the Baker case represents the new point of departure for the duty of fairness in Canada. In that case, the unanimous Court established a duty to provide written reasons as an element of fairness. In so doing, the Court restated and consolidated its approach to the content of fairness. However, the application of this contextual approach in Baker also demonstrates the dangers of indeterminate flexibility in administrative law.

Under the third heading is a review of the Court's continuing elucidation of the jurisdiction of public inquiries. In Consortium Developments (Clearwater) Ltd. v. Sarnia (City), the Court considered the extent to which the motivations of a municipal council can affect the jurisdiction of that council to establish a judicial inquiry. In Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), the Court considered whether the Commissioner of a public inquiry had the jurisdiction to make findings of misconduct. In both cases, the Court was asked to map the often blurred boundaries between the jurisdiction of inquiries on the one hand, and civil and criminal investigations on the other.

Finally, under the fourth heading is a review of the Court's emerging jurisprudence on collateral attacks. In R. v. Consolidated Maybrun Mines Ltd. and its companion case, R. v. Al Klippert Ltd. the Court addressed the issue of whether, and in what circumstances, a party subject to an administrative decision or order can, without having appealed the decision or order, attack that decision or order in a subsequent judicial proceeding. Put more simply, these cases address when it is necessary for an aggrieved party to exhaust all administrative remedies prior to seeking a remedy in a judicial forum.

Suggested Citation

Sossin, Lorne, Developments in Administrative Law: The 1997-98 and 1998-99 Terms. Supreme Court Law Review, Vol. 11, No. 2, pp. 37-100, 1999, Available at SSRN: https://ssrn.com/abstract=1144662

Lorne Sossin (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
76
Abstract Views
811
Rank
567,904
PlumX Metrics