Bibliographic record
Abstract
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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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.005 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.019 | 0.052 |
| Scholarly communication | 0.018 | 0.003 |
| Open science | 0.002 | 0.004 |
| Research integrity | 0.003 | 0.006 |
| Insufficient payload (model declined to judge) | 0.005 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".