Developments in Administrative Law: The 2003-2004 Term

Abstract

The 2003-2004 term at the Supreme Court of Canada continued a trend of significant activity in the sphere of administrative law. If there was a consistent theme to the year's case law in this area, it was the openness displayed by the Court to revisit core principles, especially with respect to the relationship between courts and administrative tribunals. This trend was apparent in Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur and Paul v. British Columbia (Forest Appeals Commission), companion decisions in which the Court unanimously overturned the fairly recent 1996 precedent of Cooper v. Canada (Human Rights Commission dealing with the jurisdiction of tribunals to adjudicate Charter challenges. This trend was also on display in Toronto (City) v. C.U.P.E., Local 79 and Voice Construction Ltd. v. Construction & General Workers' Union, Local 92 where two justices embarked on a fundamental rethinking of deference and the standard of review jurisprudence of the Court. In light of the 2003-2004 term, administrative law remains the subject of vigorous debate and creative interpretation, and continues to animate the Court's approach to the rule of law, the separation of powers and the legal contours of the administrative state.

This article is divided into four parts. This first and most substantial part of this review will analyze what I take to be the most dramatic development of the year - the companion decisions of the Court in Martin and Paul, mentioned above, in which the Court confirmed a far more expansive role for administrative tribunals in constitutional adjudication. The second section looks at a series of cases dealing with the standard of review. In this section, I highlight Toronto (City) v. CUPE and Voice Construction, mentioned above, the continuing rearguard movement, led by LeBel J. to depart from the three standards of review articulated most recently and most forcefully by Iacobucci J. in Ryan and return to a framework more consistent with CUPE v. New Brunswick Liquor in which a court would choose to defer or not to defer to administrative tribunal decisions. The third section focuses on procedural fairness, particularly in the context of political and legislative areas of decision-making, in Imperial Oil Ltd. v. Quebec (Minister of the Environment) and Congregation des temoins de Jehovah de St Jerome-Lafontaine v. Lafontaine (Village ). Finally, in the fourth section, I discuss the Pritchard v. Ontario (Human Rights Commission) decision, which pitted the duty of fairness against solicitor-client privilege. In addition to these cases, a number of other decisions by the Court this term raised or applied administrative law doctrines but in my view did not substantially alter or extend those doctrines in ways likely to have continuing reverberations.

The close of this term marked the retirement of Justices Louise Arbour and Frank Iacobucci. While Madam Justice Arbour's contributions to administrative law have been significant in light of her abbreviated tenure on the Court the departure of Frank Iacobucci marks the loss of one of the most energetic and imaginative administrative law scholars of his generation. While Iacobucci J. has authored scores of reasons in administrative law cases, he will be best (if not most fondly) remembered for designing and defending the standard of review jurisprudence of the Lamer/McLachlin Courts.