Remedies in Canadian Administrative Law: A Roadmap through a Parallel Legal Universe
Administrative Law in Context, 3d ed. (Colleen M. Flood & Lorne Sossin, eds.) (Toronto: Emond, 2017)
54 Pages Posted: 20 Dec 2018
Date Written: November 28, 2018
Administrative law in Canada, as in many other common law countries, centres around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose.
This chapter, which has been revised and updated for the third edition of this leading text on Canadian Administrative Law, seeks to provide a broader, plain language overview of administrative law remedies as a whole, including not only judicial review but also tribunal decisions at first instance, internal and external appeals, enforcement mechanisms, extralegal strategies, and private law remedies. Along the way the chapter examines some of the unique characteristics of administrative agencies; the potential of and limits to judicial remedies for systemic problems, such as toxic organizational culture and embedded discrimination; the ever-shifting border between policy and legal decisions (including around the duty to consult in Aboriginal Administrative Law); the line between public law remedies and private law remedies, such as damages; and the Supreme Court of Canada’s evolving understanding of the Rule of Law as a dialogue between branches of government.
Keywords: administrative law, remedies, tribunals, rule of law
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