The Charter and Administrative Law: Cross-Fertilization in Public Law

ADMINISTRATIVE LAW IN CONTEXT, C. Flood, L. Sossin, eds., pp. 169-195, Toronto: Emond Montgomery, 2008

28 Pages Posted: 3 Jul 2008  

Evan Fox-Decent

McGill University - Faculty of Law

Abstract

The relationship between Canadian administrative law and the Canadian Charter of Rights and Freedoms is complex and still unfolding. If a decision touches a Charter right, frontline decision-makers and reviewing courts alike determine the requirements of legality using the Charter, administrative law principles, or some combination of the two. There is an emerging consensus that the Charter does not replace the common law, but rather embodies and supplements fundamental legal principles contained within it.

This chapter sets out various ways in which judicial review at common law has influenced understandings of the Charter, as well as the manner in which the Charter has influenced review of administrative decisions when a Charter right is clearly at stake. The influence runs in both directions, and has significant implications for judicial review of both the procedure and substance of administrative action. In the realm of procedure, the courts rely on the common law doctrine of procedural fairness to interpret the principles of fundamental justice set out in s. 7 of the Charter. However, when courts review the substance rather than the procedural aspects of a decision that engages a Charter right, they tend to review the decision using the analytical framework developed in R. v. Oakes for testing the validity of legislation. Taken together, these general features of the relationship between Charter jurisprudence and administrative law suggest that each is porous and open-textured to the other. Put another way, the relationship between the Charter and administrative law exhibits a cross-fertilization of principles and approaches which inform judicial review of administrative action.

Keywords: public law, administrative law, constitutional law

Suggested Citation

Fox-Decent, Evan, The Charter and Administrative Law: Cross-Fertilization in Public Law. ADMINISTRATIVE LAW IN CONTEXT, C. Flood, L. Sossin, eds., pp. 169-195, Toronto: Emond Montgomery, 2008 . Available at SSRN: https://ssrn.com/abstract=1154903

Evan Fox-Decent (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

HOME PAGE: http://https://www.mcgill.ca/law/about/profs/fox-decent-evan

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