The Constitution of the Administrative State

Modern administrative law in Canada is facing challenging questions about how to best uphold the rule of law and govern government decision-making. The courts in particular are struggling with questions about the exercise of judicial review, including questions about deference and the constitutional obligations of administrative decision-makers. This paper contends that any successful response to these queries entails greater attention to structural matters, including a clear, principled account of the nature and place of the administrative state in Canada’s public order. In service of such an account, this paper considers one underlying structural matter, namely, how to conceive of the administrative state. It argues that Canadian public law jurisprudence offers two ways of conceiving of administrative actors – a subtraction thesis and a generative model. It presents these two approaches through a close reading of three judgments of the Supreme Court of Canada – MacMillan Bloedel v. Simpson, Cooper v. Canada (Human Rights Commission), and Ocean Port Hotel Ltd. v. British Columbia (Liquor Control and Licensing Branch). In each case, the division between the majority and dissent, or between the actual and expected outcome, tracks the divide between the generative and the subtractive approaches. Thus, these cases offer insight into the logic and implications of these two modes of reasoning. Further, in each case, the generative conception of the administrative state is reflected in the reasons of Chief Justice McLachlin. Her approach reveals a rich, sensitive, and bold vision of the administrative state that was often contrary to majority views in the early years of her tenure at the Supreme Court, but which now consistently finds expression in the case law, and with good reason. As the courts confront the pressing questions of administrative law that come before them, judges will inevitably have to decide which of the two paths – the generative or the subtractive approach to conceiving of the administrative state – is most appropriate in the landscape of Canadian constitutionalism. This paper aims to assist in that decision.

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