Against ATCO: Text, Purpose & Context, not 'Implied' and 'Express' Powers

(2024) Advocates' Quarterly (Forthcoming)

17 Pages Posted: 13 Dec 2023

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Date Written: November 19, 2023

Abstract

It is often said that administrative bodies have no inherent jurisdiction, only those powers granted by the legislature. Questions about the scope of regulatory authority arise frequently and are often litigated. My goal in this paper is to identify the analytical framework best suited to answering these questions, with particular attention to Canada.

For a generation, the ATCO decision from 2006 has been the touchstone for Canadian lawyers who need to determine whether an administrative decision-maker can do something not expressly provided for by statute. I argue in Part I that the ATCO test is analytically deficient and unnecessarily confusing. Its distinction between express and implied powers, and the five factors it sets out to navigate the distinction, are unhelpful. A better approach is needed.

I explain in Part II that the ordinary principles of statutory interpretation provide a better approach. Simply stated, the scope of an administrative decision-maker’s authority can be determined by reference to statutory text, purpose and context. There is no need for the express/implied distinction or a multiplicity of factors. It is more helpful to think of statutory powers as a single category – identifiable by reference to statutory text, purpose and context – rather than as falling into two distinct categories of express powers and implied powers. There are only “statutory powers”.

This paper focuses on statutory interpretation. Its audience is both the courts, who may have to determine the scope of administrative decision-makers’ powers, and administrative decision-makers themselves, who frequently have to determine what they can or cannot do. It is a paper about first principles, explaining how courts and administrative decision-makers should answer questions about the scope of regulatory authority.

Keywords: ATCO, implied powers, express powers, statutory interpretation, regulation

Suggested Citation

Daly, Paul, Against ATCO: Text, Purpose & Context, not 'Implied' and 'Express' Powers (November 19, 2023). (2024) Advocates' Quarterly (Forthcoming), Available at SSRN: https://ssrn.com/abstract=4637902

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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