The Quasi-Revival of the Canadian Bill of Rights and Its Implications for Administrative Law

Supreme Court Law Review (2nd), Vol. 25, pp. 191-212, 2004

12 Pages Posted: 16 Jun 2008

See all articles by Lorne Sossin

Lorne Sossin

York University - Osgoode Hall Law School

Abstract

Curiously, one of the most significant features of the administrative law cases decided by the Supreme Court this past term was the prominence of the Canadian Bill of Rights. Authorson (Litigation Guardian of) v. Canada (Attorney General) raised the scope of procedural protection in sections l(a) and 2(b) of the Bill of Rights, while Bell Canada v. C.T.E.A. the content of section 2(b). The Court has also granted leave in a third Bill of Rights case, Air Canada v. Canada (Attorney General). In this brief review, I offer an account of what appears to be something of a Bill of Rights revival in the federal administrative law sphere, and the implications of the Bill of Rights for the development of Canadian administrative law more generally. Notwithstanding the enduringly conservative approach of the Supreme Court to developing its Bill of Rights jurisprudence, I suggest the role of the Bill of Rights (and other quasi-constitutional instruments) may grow in light of other developments in Canadian administrative law.

The Bill of Rights often has been described as "a half-way house between a purely common law regime and a constitutional one" or simply, for short, a "quasi-constitutional" instrument. The significance of this characterization for administrative law was highlighted in the Supreme Court's decision in Ocean Port Hotel Ltd. v. British Columbia (General Manager Liquor Control & Licensing Branch), in which the Court observed that the common law rules of procedural fairness could be displaced by an expressly worded statute, except in jurisdictions where quasi-constitutional guarantees of procedural fairness had been enacted.

Where statutory provisions appear to displace common law procedural guarantees, the Bill of Rights may well be the only recourse affected parties have to challenge federal government action. Even where other protections are available (for example, the Charter), the Bill of Rights may nonetheless provide a preferable route to a remedy in light of the distinctive features of the due process and fair hearing provisions (for example, the due process protection over the enjoyment of property) and the absence of a limiting clause such as section 1 of the Charter. For all of these reasons, the Bill of Rights merits renewed attention from constitutional and administrative law observers alike.

This paper is divided into three sections. In the first section, I trace the background of the Bill of Rights and its impact on federal administrative law. In the second section, I examine Authorson and Bell Canada, and the questions resolved and raised by the Supreme Court's recent treatment of the Bill of Rights in this context. In the third and final section, I consider the future of the Bill of Rights for administrative law and the issues to be raised in the forthcoming Air Canada appeal.

Suggested Citation

Sossin, Lorne, The Quasi-Revival of the Canadian Bill of Rights and Its Implications for Administrative Law. Supreme Court Law Review (2nd), Vol. 25, pp. 191-212, 2004, Available at SSRN: https://ssrn.com/abstract=1144688

Lorne Sossin (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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