Developments in Administrative Law: The 1999-2000 Term

The 2002-2003 term at the Supreme Court of Canada witnessed remarkable activity in the sphere of administrative law, and notably, an unprecedented spate of cases dealing with different aspects of the standard of review for judicial intervention in administrative decision-making. This first part of this review will analyze the scope and implications of the standard of review developments this term and is divided into three sections. In the first section, examine the Court's attempt, through two unanimous decisions in Law Society of New Brunswick v. Ryan, and Dr. Q v. College of Physicians and Surgeons of British Columbia, to provide a coherent and consistent approach to the pragmatic and functional approach and to the relationship between the three standards of review recognized by the Court. In the second section, review CUPE v. Ontario (Ministry of Labour), in which the Court is unable to reach a consensus on the framework of deference applicable to the setting of ministerial discretion. The third section looks at two decisions, Barrie Public Utilities v. Canadian Cable Television Assn., and Chamberlain v. Surrey School District No. 36, which in different ways explore the problems of deference associated with administrative decisions raising constitutional questions. The second part of this review considers the ongoing elaboration and refinement of judicial independence and administrative independence in Ell v. Alberta and Bell Canada v. Canadian Telephone Employees Assn., and concludes with a brief discussion of the state of the law regarding the standard of review for government responses to the recommendations of judicial compensation commissions. Finally, the third part looks at the unsettled procedural obligations contained in the Canadian Bill of Rights as applied in Authorson v. Canada (Attorney General) and the issue of deference toward the legislature in the face of an unjust law. The close of this term marked the retirement of Justice Charles Gonthier. While administrative law may not have been his best known area of interest, his influence over the field has been significant. His judgment in 2747-3174 Quebec Inc. v. Quebec (Regie des permis d'alcool), for example, set the stage for much of the ensuing case law on institutional impartiality and independence. Perhaps Gonthier J.'s most spirited administrative law judgment was National Corngrowers Assn v. Canada (Import Tribunal), where he authored the majority reasons. At issue in the case was a finding of the Canadian Import Tribunal that certain grain exports into Canada constituted a material injury to the Canadian grain industry, which would pave the way for countervailing duties. Justice Gonthier's judgment analyzes the Tribunal's reasons, including its treatment of international agreements such as GATT, and concluded that its and conclusions were not unreasonable. Justice Wilson, writing for the concurring judges, took issue with Gonthier J.'s scrutiny of the reasoning process of the Tribunal, and argued that deference required that the Court not second-guess how the Tribunal chose to interpret its statute. In response, Gonthier J. asserted, I do not understand how a conclusion can be reached as to the reasonableness of a tribunal's interpretation of its enabling statute without considering the reasoning underlying it, and would be surprised if that were the effect of this Court's decision in C.U.P.E., supra. The debate between Gonthier and Wilson JJ. regarding the nature and scope of deference continues to haunt the Court, and the intellectual rigour they brought to the issue in National Corngrowers continues to characterize the ambition of the Court in the field of standard of review

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