Canadian Administrative Law and Good Governance

Can administrative law foster good governance?Some argue that it not only can but must do so; that fostering good governance is its raison d'être.Professor Juli Ponce has argued that " [a]dministrative Law… is concerned with good decisions, with good administration.It is important that Public Administration makes both the legal and the right decisions because people demand good decisions, together with proper reasons to back them, and they want to be heard and to have a say in the matter." 1 Others too believe that to "stimulate better decision making" by public bodies "is a core goal of administrative law", 2 and that it is central to "good government".3 I do not intend to dispute these statements; I do not disagree with them, so far as they go.However, I will seek to add a warning to these claims about administrative law and good governance.Although good governance is important, and although administrative lawunderstood here, as it usually is in Canada, as the law of judicial review of administrative action-can and does contribute to it in ways that I will describe, one must be careful about how one goes about pursuing this goal, lest the pursuit become self-defeating.Needless to say, good governance is a complex concept.We can, and do, disagree about what it involves or requires.Is good governance about the efficiency of administrative processes?Their fairness?Is it about policy outcomes meeting some substantive criterion (whether increased economic welfare, equality, or respect for fundamental individual rights)?Administrative law must settle these disagreements to some extent, but-as in other areas of the law-the settlements can only be provisional and contested, and can differ from one jurisdiction to another.While some of the differences caused by time and place might be too bound up with contingent historical, political, or other circumstances to be more than objects of curiosity, others present lessons that we can learn by comparing the administrative law of different jurisdictions.In this essay, I present four aspects of good governance, introducing them in what I tentatively think is an order of increasing difficulty for administrative law and its integration with the broader legal landscape-at least, within the Canadian legal system.They are, first, efficient decision-making; second, the quality of the decision-making process; third, the substantive quality of administrative decisions; and fourth, their legality and constitutionality.For each of these facets of good governance, after a brief explanation of its nature, I briefly 1 Juli Ponce, "The Right to Good Administration and the role of Administrative Law in promoting good government", online: at 2.

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