The Individual and the Bureaucracy:
Judicial Review – Do We Need It? *
W. H. Angus-t
INTRODUCTION
The word “bureaucracy” often carries negative connotations in
common parlance. Yet when a new problem arises in our complex
society, the citizen almost invariably looks to government for the
passage of legislation to deal with the difficulty. The public seeming-
ly desires, or at least tolerates, increased public intervention in
private lives as the price for coping with the exigencies of the day.
Effective implementation of legislation, however, requires some kind
of administration. One perceives a certain duality of attitude toward
the administrative apparatus of government –
a reliance on the
benefits, but a mistrust of the possible abuses.
History has taught us to be wary of uncontrolled power, and in
the common law world, courts have evolved over the centuries as
the chief protector of the citizen from unauthorized or arbitrary
administrative actions of government. This evolution was marked,
some would say marred, by many of the haphazard traits of the
common law in its pragmatic approach to individual cases, and has
been greatly complicated by form and technicality.’
* The third of four lectures in the 1972-73 Annual Lecture Series of the
Osgoode Hall Law School, York University. A related lecture, the second in
the series, by Professor Peter W. Hogg entitled Judicial Review: How Much
Do We Need? appears immediately preceding in this issue.
t Professor and Director of the Graduate Programme in Law, Osgoode Hall
Law School, York University, Toronto. The author wishes to acknowledge the
contributions of Mrs Nancy Chaplick whose research assistance yielded a
substantial amount of material for this lecture, Professor Hogg for his
thoughtful comments on its subject matter, and Professor Daniel Baum as
the person responsible for the 1972-73 Annual Lecture Series.
I An excellent work on the early development of the more important pre-
rogative writs is Henderson, Foundations of English Administrative Law
(1963). For brief treatments of the distinctive origins and growth of English
administrative law, see: de Smith, Judicial Review of Administrative Action
2d ed. (1968), 4-7, 23-24, 83-85; and Rubinstein, Jurisdiction and Illegality: A
Study in Public Law (1965), 54-80. One can gain a perspective on the importance
of the historical background from such classic judgments as those of Lord
Sumner in The King v. Nat Bell Liquors, Ltd., [1922] 2 A.C. 128, 131 (P.C.); Lord
Justice Denning (as he then was) in R. v. Northumberland Compensation
Appeal Tribunal, Ex parte Shaw, [1952] 1 K.B. 338, 346 (CA.); and Lord Reid
in Ridge v. Baldwin, [1964] A.C. 40, 63 (H.L.).
McGILL LAW JOURNAL
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Although recent decades have spawned dramatic growth in legis-
lation and government administration, we have relied largely on
the judicial machinery of earlier times as our shield from adminis-
trative excesses. In the changed situation of modem society, is it
not reasonable to ask whether judicial review of administrative
action continues to meet our needs and expectations? My starting
point, therefore, is to question the effectiveness of judicial review
as a means to protect the interests of citizens from the abuse of
governmental administrative power.
I. HOW EFFECTIVE IS JUDICIAL REVIEW?
Apparent public confidence that the courts can and will protect
citizens from the wrongs of government administrative action is
indeed remarkable. Those of us close to the law know, of course,
that the usefulness of judicial review is limited in many ways. Yet
even we really know relatively little about how effectively the judi-
ciary controls the administrative process. Our experience is random
at best. Cases in the law reports deal only with selected legal issues,
and do not present a comprehensive view. It remains for a law
reform commission or a research institution with substantial finan-
cial resources to undertake a thorough and profound study of what
is really happening on a day to day basis both within and without
the courts in relation to administrative agencies.2
What follows here are a few preliminary thoughts based on some
exploratory research and pragmatic observations. They constitute
a rather modest attempt to break new ground when compared to
present day social science methods, and thus may be open to chal-
lenge.3 But this risk is accepted because it seems to me that we
should be looking in new directions to resolve the continuing prob-
2 Unfortunately the widely publicized Royal Commission Inquiry into Civil
Rights in Ontario, known as the McRuer Commission, did not engage in em-
pirical research to any significant extent. For an extremely perceptive criticism
of its first report, see Willis, The McRuer Report: Lawyers’ Values and Civil
Servants’ Values, (1968) 18 U. of T. L.J. 351. The term “agencies” is used
throughout my lecture in a broad sense to encompass boards, commissions,
tribunals, departments and public officers, in preference to “tribunals” which
perhaps conveys a narrower meaning.
3 Subsequent discussions with qualified social scientists reassured me some-
what in that they were of the view that the methodology used was sufficient
to assure reasonably reliable results and that a full scale inquiry by researchers
experienced in social science methods would probably produce the same or
very similar findings as those set forth hereafter.
19741
THE INDIVIDUAL AND THE BUREAUCRACY
lems of administrative law in preference to a reliance on the old
assumptions and formulae.
The Tip of the Iceberg
A fair estimate on the number of administrative decisions made
by government agencies in Canada each year would extend into
the millions. Only a very few of these decisions are ever reviewed
by a court. To obtain some idea of the enormous volume of decision-
making by government agencies, consider that the Workmen’s Com-
pensation Board of Ontario in 1971 received 366,830 claims;4 the
Ontario Labour Relations Board disposed of 1,499 applications in a
one year period ending in 1972;- the Canada Pension Commission
and its Appeal Boards made 6,206 decisions in the year ending
March 31, 1971, and a recent report stated that the number had
increased to approximately 10,000 a year because of legislative
changes increasing the range of benefits;” in the final nine months
4 Statistics for 1972 became available after the lecture was given, and a total
of 376,967 new claims were received in that year, a slight increase. In 1971,
approximately 6% of the claims were initially rejected, compared to 7.8%
in 1972. These percentages confirm a report in The Globe and Mail, Monday,
April 3, 1972, 5 (cols. 3-6) where senior labour officials asserted that close to
95% of claims go through quickly and satisfactorily. Figures for review or
appeal at the three stages and decisions favourable to the claimant are as
follows
(4,370)
applications resulting in 810 (885) decisions changed in whole or in part;
Appeal Tribunal –
1,066 (1,417) appeals with decisions favourable to the
appellant on 541 (752) occasions; Compensation Board –
192 (285) appeals
and 98 (142) decisions altered. Success rates on review or appeal, therefore,
(20.3%); Appeal Tribunal –
were as follows: Review Committee –
50.8%
(53.1%); Compensation Board –
(49.8%). The figures were
provided by officers of the Board.
(1972 statistics in brackets): Review Committee –
21.9%
51.0%
3,695
5Provisional figures for the next year ending March 31, 1973 show an
increase in applications and complaints from 1,598 to 1,770, and a corresponding
rise in the number disposed of to 1,713. The statistics were made available
by the Board Solicitor.
6 Department of Veterans Affairs, The Canadian Pension Commission, and
the War Veterans Allowance Board: Annual Report, 1970-71, 74 (Ottawa:
Information Canada, 1971). Of the total, 5,210 claims were submitted and
approximately 42% were allowed in whole or in part. From these decisions,
996 appeals were taken to Appeal Boards and again nearly 42% succeeded. This
success rate compares to a ten year average between 1961-62 and 1970-71 of
36.5% and 44.1% respectively. The Pension Act, R.S.C. 1970, c.P-7 was amended
by R.S.C. 1970, 2d Supp., c.22 to broaden the benefits and also created a new
three-level structure for the consideration of claims. Figures provided by the
Bureau of Pensions Advocates in Toronto for claims to the Canada Pension
Commission under the amended Act in 1971-72 and 1972-73 show a substantial
McGILL LAW JOURNAL
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of 1971, 546,332 applications were filed in Ontario alone for benefits
under the Unemployment Insurance Act.7 One could carry on for
pages with figures of these staggering proportions, but surely the
point has been made.
Compare with the foregoing some figures for judicial review of
administrative decisions. In the period from January 1 to December
31, 1972, the “Proceedings at Osgoode Hall” column in The Globe
and Mail, which reports all cases heard in Toronto and their dis-
position in summary form, listed a total of 210 cases of an admin-
istrative law nature –
59 in the Ontario Court of Appeal, 44 in the
new Divisional Court and 107 on application in Weekly Court and
Chambers.8
Obviously only a minute fraction of administrative agency de-
cisions are, or could be, reviewed by the courts. If judicial review
of every administrative decision was feasible, an already overworked
judiciary would simply be swamped by the volume. At best, there-
fore, judicial review performs a minimal supervisory function.
Although the spectre of judicial intervention may be an inhibiting
factor for administrative agencies, the fact remains that it is a
remote possibility in reality.
Prospects for Successful Judicial Review
The likelihood of a litigant adversely affected by agency action
obtaining a favourable result in the courts is not so overwhelming
that he should rush into the judicial forum. Indeed the contrary
appears to be the case. Professor Hogg’s analysis of Supreme Court
increase to 10,202 and 10,307 respectively. In 1972-73, provisional statistics
indicate that 1,307 decisions of the Canada Pension Commission were taken
to Entitlement Boards for hearing and review, and appeals from the Entitle-
ment Boards to the Pension Review Board were 88 in number.
7National figures are even more impressive. Statistics Canada (1972), 31
Statistical Report on the Operation of the Unemployment Insurance Act, Table
10 (Ottawa: Information Canada, 1972-73) records a total of 3,936,380 initial,
renewal and revised claims adjudicated in the 1972 calendar year. Of 2,047,145
initial claims, 1,299,168 were found entitled to benefits for a success rate of
63.5%. Renewal claims succeeded in 338,261 of the 420,377 applications or
80.5% of the time.
8The Divisional Court was authorized by the passage of The Judicature Act
Amendment Act, 1970 (No. 4), S.O. 1970, c.97, as amended by The Judicature
Act Amendment Act, 1971, S.O. 1971, ,c.57, but the legislation was not pro-
claimed in force until April 17, 1972. In the interim, applications for review
of administrative agency proceedings were brought in Weekly Court and
Chambers whose jurisdiction in these matters was transferred to the new
Divisional Court under the statutory amendments.
1974]
THE INDIVIDUAL AND THE BUREAUCRACY
of Canada decisions in the administrative law field between 1949
and 1971 indicates a success rate for the litigant against the agency
of approximately 44%.9 A similar study by Professor Weiler of labour
relations judgments in the Supreme Court between 1950 and 1970
shows that the board decision did not prevail in only 37% of the
cases.’ From the Proceedings at Osgoode Hall column during 1972,
one likewise finds that the success rate of litigants was less than
35% in Weekly Court and Chambers, approximately 32% in the
Divisional Court, and rose slightly to 44% in the Ontario Court of
Appeal. 1
One might wonder why the success rate of the aggrieved litigant
is greater in the Supreme Court of Canada and the Ontario Court
of Appeal than on initial review in the courts below. An answer is
perhaps to be found in the volume of cases at each level. For exam-
ple, the Ontario Court of Appeal heard 59 administrative law cases
in 1972, while a total of 151 proceedings were brought before the
Divisional Court and on application in Weekly Court and Chambers.’ 2
Appeals to the Ontario Court of Appeal by parties disputing admin-
istrative action who were unsuccessful at the initial stage of judicial
review outnumbered appeals by administrative agencies roughly in
the proportion of two to one. Presumably the cases with the best
chances of success were the ones appealed.
These figures on success rates should be regarded with some
caution, because they do not include an evaluation of qualitative
elements.’3 At the same time, the few cases which do see the light
of judicial review are probably those where the prospects for success
by the aggrieved litigant were reasonably attractive. But the results
do not provide much room for optimism on the ultimate prospect
of a favourable judicial decision.
The Second Round
Even if a litigant succeeds in having the decision of an admin-
istrative agency quashed through judicial review, the court in most
instances is unable to decide in his favour on the substantive issues
which were before the agency. Ordinarily the agency decision is
9 Hogg, The Supreme Court of Canada and Administrative Law, 1949-1971,
(1973) 11 Osgoode Hall L.J. 187.
10 Weiler, The “Slippery Slope” of Judicial Intervention: The Supreme Court
and Canadian Labour Relations, 1950-1970, (1971) 9 Osgoode Hall L.T 1, 13-16.
11 Cf. supra, notes to f.n.8.
12 Ibid.
13 Weiler, supra, f.n.10, 12, 16, elaborates on this point.
McGILL LAW JOURNAL
[Vol. 20
simply set aside or quashed. On occasion, the agency will commence
its proceeding afresh, and correct the error made previously. This
is particularly true, of course, where a procedural defect such as a
denial of natural justice persuaded the court to upset the agency
determination.
Many on the academic side tend to be interested in the law
created by a judicial decision, and are often less concerned with the
eventual outcome in any given case. Whether the matter is taken up
again by the administrative agency, and with what results, are not
usually explored unless one has a particular interest in the case. To
satisfy my curiosity in this regard, a questionnaire was sent to each
agency which had been successfully challenged through judicial
review in a reported case between 1970 and mid-1972. The number
of cases was small, 32 in all, and 29 returns were received. 4 Many
of the responses proved interesting and informative.
First, in 14 cases where the final result favoured the successful
litigant, no further action was taken by the agency. 5 Three other
instances produced a new proceeding by the agency in which the
result was more favourable to the litigant than on the first occasion.’
14Responses to the questionnaire were not forthcoming from the adminis-
trative agency concerned in Regina v. Des Rosiers, ex parte Millard, [1970]
3 O.R. 446 (Ont. H.C.); Raes v. Township of Plympton (1971), 20 D.L.R. (3d)
645 (Ont. C.A.); and Re MacKay Construction Ltd. and Local 721C, International
Union of Operating Engineers (1972), 21 D.L.R. (3d) 485 (P.E.I. S.C.).
15 Johnston v. Association of Professional Engineers of Saskatchewan (1970),
75 W.W,R. 740 (Sask. C.A.); Kerster v. College of Physicians and Surgeons of
Saskatchewan (1970), 72 W.W.R. 321 (Sask. Q.B.); Reich v. College of Physicians
and Surgeons of Alberta (1970), 75 W.W.R. 561 (Alta. C.A.); Re Thomas’
Certiorari Application (1970), 72 W.W.R. 54 (B.C. S.C.); Re Pollution Control
Act, 1967, Re Application of Hooker Chemicals (Nanaimo) Ltd. (1970), 75
W.W.R. 354 (B.C. S.C.); Bell v. Ontario Human Rights Commission, [19711
S.C.R. 756; Re Ontario Racing Commission, ex parte Taylor, [19711 1 O.R.
400 (Ont. C.A.); Re Lloyd and Superintendent of Motor Vehicles (1971), 20
D.L.R. (3d) 181 (B.C. C.A.); Re Carter and Metropolitan Toronto Board of
Commissioners of Police, [1971] 3 O.R. 559 (Ont. H.C.); Associates Finance Co.
Ltd. v. Stonell, Gillette and Gowsell, [1971] 2 W.W.R. 226 (Alta. S.C.); Fortier
Arctic Ltd. v. Liquor Control Board of Northwest Territories, [1971] 5 W.W.R.
63 (N.W.T. T.C.); Re Horowitz and Minister of Manpower and Immigration
(1972), 24 D.L.R. (3d) 370 (Que. C.A.); Knight v. Board of Yorkton School Unit
No. 36 of Saskatchewan (1972), 24 D.L.R. (3d) 1 (Sask. Q.B.), aff’d [19731 1
W.W.R. 385 (Sask. C.A.); Re Hogan and Director of Pollution Control (1972),
24 D.L.R. (3d) 363 (B.C. S.C.).
” Dome Petroleum Ltd. and Pan American Canada Oil Co. Ltd. v. Swan
Swanson Holdings Ltd. (1970), 72 W.W.R. 6 (Alta. C.A.): the right of way was
reduced by the Public Utilities Board from fifty to thirty-five feet by order
issued in October of 1972. Brook and Sunnybrook Holdings Ltd. v. City of
19741
THE INDIVIDUAL AND THE BUREAUCRACY
Thus the ultimate success rate was 17 out of 29, or almost 59%. 1
Three of the above situations where no further action was taken
by the agency are worthy of special note. In one, the commission
implemented new administrative procedures and standards of proof
in light of the litigation to cover future proceedings of a similar
nature.’ This may be regarded as a positive product of the case
since the administrative law issues were clarified. In the other two
situations deserving of particular comment, the result of the litiga-
tion prompted amendment of the legislation to effectuate the posi-
tion argued on behalf of the administrative agency, but without
retroactive application.”0 Although the litigants succeeded through
judicial review, their exertions became of historical significance only
for others in the same or similar situations.
Turning now to those cases where a party won the battle in the
courtroom but lost the war in subsequent events, one finds a variety
Calgary, [1971] 1 W.W.R. 429 (Alta. C.A.): the owner’s lands were subsequently
assessed at a lower rate in accordance with the court ruling. Re CSAO National
(Inc.) and Oakville Trafalgar Memorial Hospital Association, [1972] 2 Q.R. 498
(Ont. C.A.): on the referral back to the Ontario Labour Relations Board, the
Board certified the applicant union.
17 Further proceedings by the administrative agency were still in progress
for three of the twenty-nine cases, and a favourable result in any of them
would increase the success rate. In Lieba v. Minister of Manpower and Immi-
gration, [1972] S.C.R. 660 the applicant was reassessed pursuant to the direc-
tions of the Supreme Court and awarded points in excess of those required
for landed status, but had not yet complied with medical requirements; in
Podlaszecka v. Minister of Manpower and Immigration, [1972] S.C.R. 733
further requirements respecting landing had not been completed; and in
College of Physicians and Surgeons of British Columbia, ex parte Ahmad
(1971), 18 D.L.R. (3d) 197 (B.C. C.A.) the College initiated a new inquiry which
resulted in Dr Amhad’s name being erased from the Medical Register, but
he again resorted to judicial review, see infra, f.n.31.
‘ 8 Re Ontario Racing Commission, ex parte Taylor, supra, f.n.15.
19 Re Lloyd and Superintendent of Motor Vehicles, supra, f.n.15: the British
Columbia Legislature amended the Motor-Vehicle Act, R.S.B.C. 1960, c.253, by
S.B.C. 1972, c.35, s.24, inserting a new section 86D in the Act providing for
mandatory suspension of a driver’s licence on conviction of a listed offence,
thereby removing the suspension question from the Superintendent’s discretion
and confirming the result argued on behalf of the Superintendent in the
litigation. Bell v. Ontario Human Rights Commission, supra, f.n.15: an
amending Act, S.O. 1971-72, c.119, s.4 repealed the “self-contained dwelling unit”
provision of The Ontario Human Rights Code, R.S.O. 1970, c.318, s.3, and sub-
stituted the term “housing accommodation” with the express intention of
changing the position asserted by the Supreme Court of Canada; see Legis-
lature of Ontario Debates, 2d Sess., 29th Legis., 21 Eliz. II (1972), 4333-4. Legis-
lative response to judicial decisions is discussed more fully infra.
McGILL LAW JOURNAL
[Vol. 20
of explanations. Of the reported decisions for which responses to
the questionnaire were returned, the litigants’ successful court action
failed to achieve the desired result in 9 of the 29, or a shade over
31%, of the situations.20 In 3 of these instances, the administrative
agency considered the matters in issue again and reached the same
result as in the initial proceeding.21 Retroactive effect was achieved
in another case by the passage of a by-law.22 In one instance, the
litigant’s registration with the licensing commission expired, effec-
tively precluding him from any benefits achieved by judicial review.
Although a property rezoning decision was quashed by the court in
another action, the zoning authority then refused to rezone the land
to meet the requirements of the successful litigant.4 The winning
party subsequently went out of business in the most anti-climactic
of the examples.2 5 During the course of the court proceedings in a
labour dispute, the respondent union amended its constitution to
meet the employer’s objection, and thus rendered the legal action
moot. As a further nail in the coffin following the judicial decision
in this case, legislative amendment followed almost immediately to
20 See comment, supra, f.n.17.
21 Gana v. Minister of Manpower and Immigration (1971), 13 D.L.R. (3d)
699 (S.C.): the Immigration Appeal Board reviewed the assessment made by
the Examining Immigration Officer and found no evidence to warrant a
change; Re Valade and Eberlee, [1972] 1 O.R. 682 (Ont. C.A.): the Ontario
Department of Labour again dismissed Valade but gave more explicit reasons
and his appeal by way of grievance to the Public Service Grievance Board
subsequently failed; Inter-City Freight Lines and Highway Traffic and Motor
Transport Board of Manitoba v. Swan River – The Pas Transfer Ltd., [19723
2 W.W.R. 317 (Man. C.A.): although changed in latitude because of circum-
stances arising in the interval since the first hearing, the decision again was
in favour of the applicant.
22 Chrismas v. City of Edmonton (1970), 75 W.W.R. 453 (Alta. C.A.): as a
result, the street median remained. Retroactive legislative response to a
judicial decision is considered infra.
23R. v. Broker-Dealers’ Association of Ontario, Ex parte Saman Investment
Corporation Ltd., [1971] 1 O.R. 355 (Ont. H.C.): despite reinstatement as a
member of the Association following the litigation, a prior suspension by the
Ontario Securities Commission was confirmed by that body at a subsequent
hearing, and remained in force until the end of the registration period.
24 Re Saratoga Holdings Ltd. and District of Surrey (1971), 18 D.L.R. (3d) 371
(B.C. C.A.): the municipality then purchased the property from the litigant
and proceeded to resell the lots.
25 Re Nova Scotia Labour Relations Board, Ex parte International Union,
United Automotive, Aerospace and Agricultural Implement Workers of Amer-
ica (U.A.W.)
(1971), 16 D.L.R. (3d) 254 (N.S. C.A.).
1974]
THE INDIVIDUAL AND THE BUREAUCRACY
uphold the agency position.26 The foregoing illustrates the variety
of perils which may befall the apparently successful litigant in an
administrative law suit.
To round out the list, a final determination was still pending
in three matters. Two were immigration cases in which deportation
orders had been quashed by the courts and the Department of Man-
power and Immigration had initiated new proceedings. 7 The other
is a rather remarkable professional discipline case where the appli-
cant had been investigated for unprofessional conduct and placed on
the temporary register of the College of Physicians and Surgeons,
but successfully appealed this action before the Supreme Court of
British Columbia. s A new investigating body was established by
the College, the validity of which was challenged in a certiorari
proceeding. The application was dismissed,29 but an appeal to the
British Columbia Court of Appeal succeeded 0 Once again, the Col-
lege initiated a fresh inquiry, where the matter currently rests.
Almost four years have elapsed since the College first commenced
disciplinary proceedings 1
The object of this exercise is to illustrate that a lawyer cannot
assure his client that a favourable result in judicial review will mean
achievement of the desired objective with the agency. At most, the
client has a chance of eventual success if he wins the court action.
26Metropolitan Life Insurance Company v. International Union of Operating
Engineers, Local 796, [1970] S.C.R. 425. A sympathetic comment on the case by
Lyon, (1971) 49 Can. Bar Rev. 365 contains a thorough discussion of the policy
issues.’ Professor Hogg, in his companion lecture to mine, however, is highly
critical of the Supreme Court of Canada’s reasoning. The Labour Relations
Act, R.S.O. 1960, c.202, ss.1(1), 77 was amended by The Labour Relations
Amendment Act, 1970, S.O. 1970, c.3 to achieve the desired policy objective.
Legislative intervention is further discussed infra.
27 Lieba v. Minister of Manpower and Immigration and Podlaszecka v.
Minister of Manpower and Immigration, supra, f.n.17.
28 Not reported, but referred to in Re Medical Act, Re Ahmad’s Application
(1970), 75 W.W.R. 80, 81 (B.C. S.C.).
29 Ibid.
30 College of Physicians and Surgeons of British Columbia, ex parte Ahmad,
supra, f.n.17.
31Since my lecture was given, there have been further developments. The
new Inquiry Committee held a hearing lasting six days, and made its report
to the Council of the College. After some delay in having Dr Ahmad appear
before it, the Council ordered that his name be erased from the Medical
Register. Dr Ahmad secured a stay of erasure from the Supreme Court of
British Columbia pending the hearing of an appeal. Numerous postponements
were encountered and the appeal was scheduled to be heard on July 9, 1973 at
the time of writing.
McGILL LAW JOURNAL
[Vol. 20
Against this must be balanced the costs to him in terms of delay,
expense and other incidental factors.
The High Cost of Litigating
All types of litigation are conducted at considerable financial
expense to the adversaries. Lawyers know very well that even a
modest settlement may be more advantageous to a client than even-
tual success in the courts. The high cost of litigation is even more
apparent when an individual challenges the proceedings of an
administrative agency, because monetary recovery is rarely in issue.
In most civil litigation, there is the prospect of a pot of gold at the
end of the rainbow from which the victor may at least recover his
litigation expenses.32 The objective in an administrative law case,
however, is ordinarily to set aside the decision of an agency, to
prevent the commencement or continuation of an agency proceeding,
or to compel an agency to fulfill its statutory duty.
Where damages are sought in an administrative law action, the
recognized ground of bad faith on the part of the administrator can
rarely be established because most administrators simply do not
endeavour to inflict harm on members of the public. Of recent date,
actions for damages against administrative agencies have turned
to the ground of negligence established by the leading decision of
the House of Lords in Hedley Byrne v. Heller & Partners Ltd.3-
Hedley Byrne has enjoyed only limited administrative law applica-
tion in Canada, 4 and the recent position of the Supreme Court of
Canada in Welbridge Holdings Ltd. v. Metropolitan Corporation of
32 He will recover costs from the losing party, of course, according to the
schedule provided by the court rules, but these will be insufficient to cover
his own solicitor-client fees which are usually met from the award of damages
against the loser in the suit.
33 [1964J A.C. 465 (H.L.). Hedley Byrne stimulated extensive comment in
common law jurisdictions. For Canadian reaction, see: Harvey, (1963) 41
Can. Bar Rev. 602; Atkey, (1964) 3 Western L.Rev. 104; Mis, (1964) 3 Alta.
L.Rev. 318; Walker, (1964) 3 Osgoode Hall L.J. 89; Gordon, (1965) 2 U.B.C.
L.Rev. 113.
34 Windsor Motors Ltd. v. Corporation of Powell River (1969), 68 W.W.R. 173
(B.C. C.A.) is the leading authority based on Hedley Byrne for recovery on
the ground of negligence against an administrative agency, but Windsor
Motors has been applied in only two cases, neither of which concerned
administrative agencies. For a general review of the matter, see Molot, “Admin-
istrative Bodies, Economic Loss and Tortious Liability”, in Fridman (ed.),
Studies in Canadian Business Law (1971), 425.
19741
THE INDIVIDUAL AND THE BUREAUCRACY
Greater Winnipeg 5 clearly establishes that the scope for recovery
in negligence is a narrow one. Indeed the decision of the Privy
Council in Mutual Life & Citizens’ Assurance Co. Ltd. v. Evatt “I from
Australia further inhibits the prospects for a broad application of
Hedley Byrne. As a consequence, actions for damages cannot be
regarded as a promising avenue for lessening the financial burden
on litigants in administrative law cases 7
Financial barriers to legal action theoretically have been removed
by the advent of legal aid schemes. For the year ending March 31,
1971, the Ontario Legal Aid Plan assisted applicants in 37,221 com-
pleted cases, of which 264 were characterized as before “Review
Boards”8
In a different analysis of the total, 191 immigration
matters and 128 workmen’s compensation cases were completed,
with the possibility that other administrative law matters might be
included in a miscellaneous category of 888 cases. 9 Administrative
agencies were thus concerned in only a fraction of one per cent of
the total. Taking into account the complex machinery of public
welfare and unemployment insurance, for example, one is left with
the impression that the Ontario Legal Aid Plan barely scratches the
surface of administrative agencies, although the reasons for this
35 [1971] S.C.R. 957. The case developed out of an earlier Supreme Court of
Canada decision in Wiswell v. Metropolitan Corporation of Greater Winnipeg,
[1965] S.C.R. 512, in which a zoning amendment of the Metropolitan Corpora-
tion was held to be invalid because of a procedural defect in posting notices
of the proposed amending by-law. In Welbridge Holdings, the developer who
had been forced after the Wiswell case to demolish a luxury multi-storey
apartment building constructed on the invalidly rezoned property, brought
an action against the Metropolitan Corporation of Greater Winnipeg claiming
close to four million dollars in damages. Laskin,I. (as he then was) for the
Supreme Court of Canada declined to extend Hedley Byrne to the situation,
and distinguished Windsor Motors, supra, f.n.34. Freedman,J.A. wrote an
interesting dissenting opinion in the Manitoba Court of Appeal which would
have imposed liability on the Hedley Byrne doctrine: (1970), 12 D.L.R. (3d) 124,
126. However, his view was expressly rejected by the Supreme Court of Canada.
36 [1971] A.C. 793 (P.C.). For a thoughtful comment on this important case,
see Glasbeek, (1972) 50 Can. Bar. Rev. 128.
37 Nevertheless some of the leading Canadian administrative law cases, such
as the well known Quebec trilogy of civil rights decisions in the Supreme
Court of Canada discussed infra, have been actions for damages.
38 The figures were provided in a personal interview with the Administrator
of York County Legal Aid.
39 Obviously immigration and workmen’s compensation cases together exceed
the total ascribed to review boards in the other set of figures, but no matter
which of the two groups of statistics is used, it is clear that the number of
administrative law matters is small in terms of the whole Ontario Legal Aid
operation.
McGILL LAW JOURNAL
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state of affairs are not readily apparent. On the other hand, extended
legal aid of the magnitude which might be necessary to serve low
income litigants with administrative agency problems adequately
would substantially increase the already soaring costs of the Ontario
Legal Aid Plan and further add to the judicial work load.
A basic difficulty is that judicial review of many agency decisions
is uneconomic, that is, the monetary amount involved or the im-
portance of the question is not worth the high cost of judicial
review. Perhaps this limitation is desirable, but it does raise the
issue whether financial considerations should be the governing
criteria which determine reviewability of administrative action.
Who Uses Judicial Review?
Although one can gain a rough idea from reported cases con-
cerning what kinds of administrative law matters come to the courts
by way of judicial review, an examination of the Proceedings at
Osgoode Hall for 1972 may be more enlightening since every action
heard there is reported in summary form.40 Of the 210 cases having
administrative law content, land use zoning and building permit
decisions were the subject matter in 44 decisions or close to 21%
of the total; labour relations cases followed closely with 42 cases
or exactly 20% ;41 tax assessment questions amounted to 28 or
slightly over 13 %; licensing matters totalled 24 in number or approx-
imately 11 /2 %; and disciplinary proceedings of professional groups
and associations came next with 15 or slightly in excess of 7%.
These five subject areas thus accounted for 153 of the 210 cases or
almost 73% of the administrative law matters before the Ontario
courts at Osgoode Hall in 1972. The rest of the proceedings were
widely dispersed among a variety of government agency endeavours. 42
An obvious observation from the foregoing figures is the concen-
tration of judicial review on relatively few fields of administrative
activity. It is also apparent that large areas of public administration
receive little or no supervision through judicial review. Particularly
noticeable is the very high percentage of situations which by their
nature disclose that the litigant challenging the administrative action
has the private resources to bear the financial costs of the court
40 Cases are not necessarily reported in the press the day after being heard,
but if not, they ordinarily appear within a few days.
41 This figure includes judicial review of labour arbitrations, a subject
which is discussed infra.
42 Some of the more frequent of these cases were in relation to securities
regulation, expropriation and compensation, immigration, and miscellaneous
municipal government activities.
1974]
THE INDIVIDUAL AND THE. BUREAUCRACY
proceeding. Absent in any significant number is the social welfare
type of case, where monetary expense may be a substantial barrier
to judicial review.
Of the labour relations cases, 33 of the 42 involved reviews of
arbitrations. The use of the courts as a continuing forum for disputes
arising under a collective agreement is surely questionable. Rarely
are the issues of overwhelming importance, and often the judicial
decision is based on a somewhat technical error of law or jurisdic-
tion 3 When the object of arbitration would seem clearly to be an
expeditious procedure to resolve a relatively minor issue without
resort to elaborate and lengthy proceedings in the courtroom, it is
somewhat puzzling to see the volume of arbitrations before the
courts. Judicial restraint in upsetting the awards of arbitrators
might well discourage prospective litigants and bring some perspec-
tive to the situation.”4
Statutory Amendment of Judicial Decisions
In a significant number of cases, the legislature has responded
to the quashing of an administrative decision by changing the
applicable statute to recognize the position unsuccessfully argued
in the courts. Usually the legislation is not made retroactive to
reverse the outcome in the particular case. A recent example is Lloyd
v. Superintendent of Motor Vehicles,45 where the British C6lumbia
Court of Appeal held that the Superintendent could not automatically
suspend a driver’s licence for thirty days on a conviction for im-
paired driving, but was required to consider the individual circum-
stances of each case and exercise his discretion accordingly. The
British Columbia Legislature promptly introduced a Bill making
it mandatory for the Superintendent to impose a one month suspen-
sion in such cases. 40 Similarly, the Ontario Human Rights Code 47
was amended following the decision of the Supreme Court of Canada
43 Any number of examples could be given, but see R. v. Barber, Ex parte
Warehouseman’s and Miscellaneous Drivers’ Union (1968), 68 D.L.R. (2d) 682
(Ont. C.A.), and R. v. Board of Arbitration, Ex parte United Steel Workers of
America, Local 4751 (1970), 7 D.L.R. (3d) 571 (Ont. H.C.), among many others.
44For a comprehensive examination of the issue, see Adams, Grievance
Arbitration and Judicial Review in North America, (1971) 9 Osgoode Hall LJ.
443. Weiler, supra, fan.10, 60 et seq. analyses the performance of the Supreme
Court of Canada in labour arbitration cases during the fifties and sixties, and
articulates several deficiencies from his evaluation.
45 Supra, fn.15.
46 Supra, fan.19.
47R.S.O. 1970, c.318.
McGILL LAW JOURNAL
[Vol. 20
in Bell v. Ontario Human Rights Commission 4s to change the effect
of the Supreme Court’s interpretation of the Code.49 In a sense,
Mr Bell won the battle and lost the war since the amended version
of the Code would thereafter apply to his situation. The much dis-
cussed decision of the Supreme Court of Canada in Metropolitan
Life Insurance Company v. International Union of Operating Engi-
neers 50 stimulated almost immediate legislative reversal.5 1 Occasion-
ally a legislature will be sufficiently aroused that it will pass an
enactment with retroactive effect to reverse a court decision, as
happened and was recently upheld by the Supreme Court of Canada
in Executors of Woodward Estate v. Minister of Finance.52
Thus the litigant may well find that his efforts have been in vain.
Cases such as these also suggest that the courts may not have been
in tune with the will of the legislature, although the explanation
that the legislature is enacting new policy objectives or merely
correcting its own drafting deficiencies is also arguable. Whichever
may be the case, the net effect of the judicial decisions is short-term
and minimal.
Some of the inadequacies of judicial review in supervising admin-
istrative action have been illustrated above. They raise questions
whether judicial review should be retained in its present deficient
form, in part or perhaps at all. To respond, one might ask what
useful purposes may be served by retention, and what other vehicles
might be more appropriate.
4 8 Supra, f.n.15. See Hogg, The Jurisdictional Fact Doctrine in the Supreme
Court of Canada: Bell v. Ontario Human Rights Commission, (1971) 9
Osgoode Hall L.. 203 for a thorough and questioning analysis of the case,
followed by Mullan, The Jurisdictional Fact Doctrine in the Supreme Court of
Canada – A Mitigating Plea, (1972) 10 Osgoode Hall L.. 440 in reply. Hunter,
The Development of The Ontario Human Rights Code: A Decade in Retrospect,
(1972) 22 U. of T. L.J. 237 provides a broader perspective of the Bell case.
He also offers a specific criticism: Judicial Review of Human Rights Legisla-
tion: McKay v. Bell, (1972) 7 U.B.C.L.Rev. 17.
4 Supra, f.n.19.
50 Supra, f.n.26.
51 The statutory intervention included a section which, although it did not
affect the parties in Metropolitan Life because the issue was already moot, had
specific retroactive application “to proceedings commenced before but not
finally disposed of when this Act comes into force”: The Labour Relations
Amendment Act, 1970, S.O. 1970, c.3, s.3.
52 (1972), 27 D.L.R. (3d) 608
(S.C.C.). This remarkable example of re-
troactivity was designed to remove a natural justice defect in a particular
instance. See An Act to Amend the Succession Duty Act, S.B.C. 1970, c.45, s.12(4)
for an extreme example of a retroactive statutory provision. Section 6 of
the amending Act proscribed any future application of the amendment.
1974]
THE INDIVIDUAL AND THE BUREAUCRACY
H1. WHY DO WE NEED IT?
At this point, Professor Hogg’s analysis of the proper scope
for judicial review is germane to the discussion.53 Briefly, his con-
clusions are that the findings of administrative agencies should
normally be treated as conclusive where the matters to be decided
lie within their particular expertise. Where, however, the agency’s
decision is in conflict with a value fundamental to the legal order as
a whole, then the generalist court is under a duty to consider wheth-
er the administrative decision should prevail over the more funda-
mental value. An administrative decision which is found to be a
reasonable interpretation of the statutory power should prevail. To
decide whether the interpretation is reasonable, the court should
consider the reasons for the administrative assumption of authority,
and balance them against the civil libertarian or proprietary values
asserted by the party affected. Although the agency decision may be
authorized by a literal reading of general language in the statute,
the court should retain a power of review to limit the generality of
the statutory language in order to protect fundamental civil liber-
tarian values. Basic to Professor Hogg’s view is the conclusion that
the court is the institution in the community best equipped by virtue
of its generalist qualifications to determine when the agency action
is out of harmony with the basic values of the legal order.54
That the generalist court should protect civil libertarian values
is a position with which there can be little, if any, dissent. A few
comments and caveats, however, are in order. We in Canada do not
have an entrenched bill of rights in our constitution. As a result,
courts have been forced to intervene under other guises where civil
libertarian values are at stake. For example, Smith v. Rhuland in
the Supreme Court of Canada was decided on the administrative law
ground that the Nova Scotia Labour Relations Board had not been
empowered to exercise its discretion against certification of the
applicant union because the communist political views of a union
officer were considered by the Board to be dangerous. 5 The well
known trilogy of Supreme Court cases from Quebec, Chaput v.
53 Supra, at p. 157.
54 This statement of Professor Hogg’s position is paraphrased from his
conclusions and should not be regarded as a substitute for reading his com-
plete text.
55 [19533 2 S.C.R. 95, 100. Rand,J. delivered the majority opinion in the 4-3
decision of the Court.
McGILL LAW JOURNAL
[Vol. 20
Romain,5″ Lamb v. Benoit 57 and Roncarelli v. Duplessis,58 relating to
freedom of religion for the Jehovah’s Witnesses, were damage actions
based on the ultra vires exercise of administrative authority. In these
three cases, the civil liberties aspects were prominent, and judicial
intervention for their protection accorded with the fundamental
values of our society despite the lack of a written constitutional
underpinning.
Civil libertarian values are not always so clear, however. In Bell
v. Ontario Human Rights Commission,9 for example, the civil rights
of the allegedly offending landlord were said in some quarters to
have been violated 0 One might well ask what happened in the
Supreme Court of Canada to the civil libertarian objectives of the
Ontario Human Rights Code. A distinction should be drawn, it is
suggested, between civil libertarian values and proprietary values.
Protection of proprietary values as included by Professor Hogg will
raise very difficult policy questions. If courts intervene extensively
to protect proprietary interests, the implications for effective achieve-
ment of statutory objectives through administrative action are sub-
56 [1955] S.C.R. 834. Its contribution to civil liberties is discussed by Scott,
Civil Liberties and Canadian Federalism (1959), 42-44; Schmeiser, Civil Liberties
in Canada (1964), 111, 115; and Tarnopolsky, The Canadian Bill of Rights (1966),
115, 122.
57 r19591 S.C.R. 321. See Scott, supra, f.n.56, 44-45; Schmeiser, supra, f.n.56,
116-117; Tarnopolsky, supra, f.n.56, 181-182; and a comment by McWhinney,
(1959) 37 Can. Bar Rev. 503.
58 [1959] S.C.R. 121. Civil liberties interest focused particularly on the
Roncarelli case, and it has been the subject of much comment. As he was
counsel in the appeal before the Supreme Court of Canada, see especially
Scott, supra, f.n.56, 47-49. See also: Schmeiser, supra, f.n.56, 116-117; Tamo-
polsky, supra, f.n.56, 104-106; McWhinney, supra, f.n.57; and Sheppard,
Roncarelli v. Duplessis: Article 1053 C.C. Revolutionized, (1960) 6 McGill L.J. 75.
59 Supra, f.n.15.
60 In his trial judgment granting the order of prohibition against the
board of inquiry established under the Ontario Human Rights Code, R. v.
Tarnopolsky, Ex parte Bell, [1969] 2 O.R. 709, 718 Stewart,I. said: “It is equally
as important that the rights of a middle-aged white Canadian homeowner be
protected as those of a young, black, Jamaican tenant. Neither more important
or less important. Equally. And perhaps it is time that this was made clear.” An
editorial in The Globe and Mail, Saturday, May 10, 1969, 6 (col. 1) echoed:
“But those who are accused of practicing it should be brought before the
courts, where they can be as sure that their civil rights will be protected as
are the civil rights of their accusers. They should not be chivvied and badgered
by a commission or by boards of inquiry which offend against civil rights in
the first place and offend again by having their judgments heavily protected
from appeal.”
19741
THE INDIVIDUAL AND THE BUREAUCRACY
stantial. Inevitably legislatures and courts will be at loggerheads,
with some considerable danger that the courts will have entered the
domain of politics. Proprietary values should not be indiscriminately
lumped with civil libertarian concerns in the exercise of the court’s
generalist judgment if harmful conflict between the legislature and
the judiciary is to be avoided.
The “Jurisdiction” Quandry
Essential to the present system of judicial review is the concept
that an administrative agency can exercise only the powers conferred
on it by the statute. For an agency to act outside the provisions of
the statute violates what Professor Hogg variously describes as the
principle of validity, legislative supremacy, or the rule of law.6′
The ultra vires concept is disarmingly simple to state, but has
proved extremely complex in application, a difficulty which pervades
many areas of the law. Courts are sometimes prone to seizing on the
smallest error and describing it as a “jurisdictional” defect. They
often do so to avoid a privative clause, with the appealing explana-
tion that surely the legislature did not intend that the agency should
act beyond the boundaries set forth in the statute. To compound
the confusion, some errors of law are found by the courts to have
been made within the jurisdiction of the agency, while others are
seen to go to the validity of its jurisdiction when the distinction
between the two situations appears nonexistent. 3 In this semantic
jungle, one may easily conclude that any error of the agency can be
construed as being outside the limits of the statute.
61 Professor Hogg’s discussion on this subject is to be found in that portion
of his lecture concerned with interpreting the empowering statute, supra, in
this volume. See also: de Smith, supra, f.n.1, 85, 94-99; I Report of the Royal
Commission Inquiry into Civil Rights (hereinafter called the “McRuer Re-
port”), 244-247 (Toronto: Queen’s Printer, 1968).
62The leading modern statement of this position is, of course, Lord Justice
Denning’s opinion in R. v. Northumberland Compensation Appeal Tribunal,
Ex parte Shaw, supra, f.n.1, which has been followed in numerous Canadian
cases.
6 3 An excellent example of the difficulty in making the distinction is to be
found in the judgment of Freedman,J.A. in Parkhill Bedding & Furniture Ltd.
v. International Molders & Foundry Workers Union of North America, Local
174 and Manitoba Labour Board (1961), 26 D.L.R. (2d) 589, 594-598 (Man. C.A.),
where that very able judge considered six similar cases divided into two
groups of three, one group in which the error was found by the courts to be
jurisdictional in nature and the other group in which it was found to have
been made within the jurisdiction of the agency. He then endeavoured to
rationalize the common distinguishing feature.
McGILL LAW JOURNAL
[Vol. 20
One view is that the court should only be concerned with the
question of whether the administrative agency had “subject matter”
jurisdiction initially to consider the issues before it. Any error at a
later stage in the proceedings is not one which truly goes to the
jurisdiction of the agency. 4 Perhaps the clearest example of a
“subject matter” jurisdiction issue is where the competence of the
agency is challenged on the ground that the matter is one which
does not fall within the legislative power of Parliament (or a Pro-
vincial legislature as the case may be) under the British North
America Act.”5 Courts have been quick, however, to discover many
kinds of “jurisdictional fact” defects, matters which are regarded
as a condition precedent to the obtaining of competence by the
agency to consider the substantive issues. An examination of the
cases in which the “jurisdictional fact” doctrine (which includes
“jurisdictional law” and mixed “jurisdictional law and fact” mat-
ters) is invoked, leads one to the conclusion that -many of these
questions are the very issues which the legislature has given to the
agency to decide as the substance of the proceeding before it0
Professor Hogg acknowledges this unwarranted intervention by the
courts, and shares the view that the specialist qualifications of the
agency in deciding these points should ordinarily prevail over the
generalist approach of the court0 7
A second recognized type of jurisdictional defect assumes that
the administrative agency had capacity initially, but subsequently
04One of the most cogent explanations of this position is the analysis of
Lord Sumner in The King v. Nat Bell Liquors, Ltd., supra, f.n.1, 151-154. See
also: de Smith, supra, f.n.1, 96-97 and the cases cited therin.
05 This question has most frequently arisen in labour relations cases. See:
Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board (1956), 5 D.L.R.
(2d) 342 (Ont. H.C.), commented on by Scott, Federal Jurisdiction over Labour
Relations – A New Look, (1960) 6 McGiU L.. 153, 165-166; Re Jessiman Bros.
Cartage Ltd. and Letter Carriers’ Union of Canada (1972), 22 D.L.R. (3d) 363
(Man. C.A.); Canadian National Railway Company v. Canada Labour Relations
Board and Canadian Brotherhood of Railway, Transport and General Workers,
[1972J 2 W.W.R. 674 (Alta. S.C.).
00 Recognition of this state of affairs was admirably recorded some time ago
by Gordon, The Relation of Facts to Jurisdiction, (1929) 45 L.Q.R. 459 and
The Observance of Law as a Condition of Jurisdiction, (1931) 47 L.Q.R. 386, 557.
More recently, he has addressed the issue again: Conditional or Contingent
Jurisdiction of Tribunals, (1960) 1 U.B.C.L.Rev. 185 and Jurisdictional Fact: An
Answer, (1966) 82 L.Q.R. 515, in response to the views of Wade, Anglo-American
Administrative Law: More Reflections, (1966) 82 L.Q.R. 226.
GT Professor Hogg’s lecture remarks on this point are amplified in his article
on the subject, supra, f.nA8.
19741
THE INDIVIDUAL AND THE BUREAUCRACY
exceeded or declined its “jurisdiction”. Obviously the word “juris-
diction” is being used in a different sense here. This particular
approach is frequently used by the courts where the applicable
statute contains a privative clause attempting to exclude judicial
review, and was firmly established by the leading decision of the
Supreme Court of Canada in Toronto Newspaper Guild v. Globe
Printing Company. 8
The standard “no certiorari” clause has been held effective to
preclude judicial supervision of an error of law on the face of the
record after the subject matter jurisdiction of the agency has been
established, on the ground that the error was made “within the
jurisdiction” of the agency.69 However, a finding that an error result-
ed in an excess or declining of jurisdiction of the second type will
render this form of privative clause nugatory.70 Whether a court
will regard the error as one made within the jurisdiction of the
agency or as one resulting in an excess or declining of jurisdiction
appears to be completely unpredictable. In the same manner, the
“exclusive jurisdiction” form of privative clause, designed to prevent
judicial scrutiny for jurisdictional fact defects, may be an exercise
in legislative futility because the court can concede the subject
matter competence of the agency and then find a subsequent excess
or declining of jurisdiction.7′ Thus this second type of jurisdictional
defect is a formidable weapon in the assault on an administrative
agency decision.
Although other examples could be given to show the types of
errors which are called “jurisdictional” by the courts, the foregoing
should be sufficient to illustrate that the term is a coat of many
08 [1953] 2 S.C.R. 18. For an interesting comment on a comment on the case,
see Gordon, (1953) 31 Can. Bar Rev. 1158, in response to Whitmore, (1953) 31
Can. Bar Rev. 679.
609 Acknowledged by Cartwright,1. in Jarvis v. Associated Medical Services
Inc., [1964] S.C.R. 497, 502, among many other authorities. A good discussion of
the point is to be found in Re Ontario Labour Relations Board, Bradley v.
Canadian General Electric Co. Ltd. (1957), 8 D.L.R. (2d) 65, 79-82 (Ont. C.A.).
70 On the authority of Toronto Newspaper Guild v. Globe Printing Company,
supra, f.n.68, applied or followed in numerous other cases including Jarvis
v. Associated Medical Services Ltd., supra, f.n.69, 502. The policy reasons
behind the intervention of the courts in this situation are explored by Reid,
Administrative Law and Practice (1971), 183-184.
71 Metropolitan Life Insurance Company v. International Union of Operating
Engineers, Local 796, supra, f.n.26, is a fine example of this dodge. The
Metropolitan Life case was recently followed in this regard by Re CSAO
National (Inc.) and Oakville Trafalgar Memorial Hospital Association, supra,
f.n.16.
McGILL LAW JOURNAL
[Vol. 20
colours. 2 Resort to it by the courts is often destructive of what
would seem clearly to be the intention of the legislature to have the
issues decided by the agency. Professor Hogg recognizes the problem
and proposes that a compromise be worked out between the com-
peting claims of the principle of validity and the principle of com-
parative qualifications.7 His study of Supreme Court of Canada
decisions between 1949 and 1971 discloses no clear pattern of result,
although he perceives a tendency in favour of upholding the admin-
istrative agency construction of the statute. 4 One would hope that
this tendency will continue, but it is certainly disquieting when the
Supreme Court of Canada emerges with a decision such as that in
Metropolitan Life Assurance Company v. International Union of
Operating Engineers.”5
One might well ask how often an administrative agency is likely
to act where it does not have subject matter competence to com-
mence its proceeding. Most agencies are sufficiently occupied with
responsibilities clearly within their powers that it would be rather
extraordinary for them deliberately to seek out a field of endeavour
beyond the boundaries of the authorizing statute. And in view of
their specialized function, it is not very often that they will acciden-
tally tread on unauthorized ground. Hog marketing boards are un-
likely to deal with cattle, to offer a simplistic example.
If an ultra vires approach to subject matter jurisdiction is to
be retained, and I do not argue against it, the artificial application of
the jurisdictional fact doctrine should surely be abandoned by the
courts and, if necessary, prevented by legislative enactment of com-
prehensive exclusive jurisdiction clauses. One would hope further
that both courts and legislatures will move against the excess or
declining of jurisdiction ploy now in vogue to avoid privative clauses.
72 1n United States v. L. A. Tucker Truck Lines Inc., 344 U.S. 33, 39 (1952)
Frankfurter,J. referred to the term “jurisdiction” as “a verbal coat of too many
colors”. Enlightening discussions, insofar as it is possible to shed light on
elusive concepts of jurisdiction, are to be found in de Smith, supra, f.n.1,
96-99; and the McRuer Report, supra, f.n.61, 244-247.
78 The contributions of Davis, IV Administrative Law Treatise (1958), s.28.21
and Abel, Appeals against Administrative Decisions: III In Search of a Basic
Policy, (1962) 5 Can.Pub.Admin. 65, are acknowledged by Professor Hogg
with respect to their advocacy of the comparative qualifications principle.
74 Supra, f.n.9.
7′ Supra, f.n.26, 50, 51 and 71.
19741
THE INDIVIDUAL AND THE BUREAUCRACY
Administrative Discretion and Judicial Restraint
Although judicial review of discretion exercised by administrative
agencies also incorporates the ultra vires concept, courts by and
large have shown commendable restraint in avoiding unwarranted
intervention and have recognized a legislative intention that policy
considerations should be left to the administrative agency. Of the
generally recognized grounds for judicial review of administrative
discretion,7 6 an ultra vires motive in the exercise of discretion is
rarely present in the agency action, but the safeguard is there if
needed. 77 Similarly, since the leading decision of the English Court
of Appeal in Associated Provincial Picture Houses Ltd. v. Wednes-
bury Corporation,” the test of “reasonableness” has not been argued
before Canadian courts with any frequency.79
The only ground for review of discretion which poses some
difficulty is that only relevant considerations may be taken into
account by the agency in the exercise of its discretion, and the
corollary that irrelevant matters must not be considered. What is
relevant or irrelevant in any given situation is often not an easy
judgment to make. Notwithstanding the obvious opening for judi-
cial intervention on this ground, courts have used it relatively
sparingly for situations such as that in Smith and Rhuland v. The
Queen, 0 where a civil liberties value was at stake. The recent deci-
sion of the Supreme Court of Canada in Boulis v. Minister of Man-
power and Immigration 8 ‘ is illustrative. Mr Justice Laskin there
stated that the agency’s reasons for the exercise of its discretion
are not to be read microscopically, but that it is sufficient if they
show a grasp of the issues raised and of the evidence addressed,
without detailed reference. So long as the courts continue to show
76De Smith, supra, f.n.1, 309-339, sets forth the grounds as exercise of a
discretionary power for an improper purpose, on irrelevant grounds or without
regard to relevant considerations, and unreasonableness, but is careful to point
out the difficulties of precise classification and terminology in particular fact
situations.
77 Roncarelli v. Duplessis, supra, f.n.58 is regarded by some as an example of
judicial intervention on this ground. See also: Brampton Jersey Enterprises
Ltd. v. Milk Control Board of Ontario, [1956] 1 D.L.R. (2d) 130 (Ont. C.A.); and
Re Henry’s Drive-In and Hamilton Police Board, [1960] O.W.N. 468 (Ont. H.C.).
78 [1948] 1 K.B. 223 (CA.).
79 In Fishman v. The Queen, [1970] Ex. C.R. 784 the Associated Provincial
Picture Houses case was applied to uphold an exercise of discretion by the
Postmaster General in issuing an interim prohibitory order suspending mail
services to the complainant.
80 Supra, f.n.55.
81 (1972), 26 D.L.R. (3d) 216, 223 (S.C.).
McGILL LAW JOURNAL
[Vol. 20
restraint, judicial review of administrative discretion will not be
subject to serious criticism.
Errors of Law and Fact
Since 1952, when Lord Justice Denning (as he then was) revived
error of law on the face of the record in the Northumberland case 8
as a ground for review where a jurisdictional defect is not present,
privative clauses have assumed an even greater significance. Many
of them are now regarded by the courts as excluding judicial review
for an error of law found to have been made “within the jurisdic-
tion” of the agency. 4 Where the privative clause has been effective
to exclude errors made within the agency’s jurisdiction, the ra-
tionale is that the specialized and expert qualifications of the
tribunal were meant by the legislature to be recognized.84
The same line of reasoning might be advanced in the absence
of a privative clause. If a court admits that the error of law does
not amount to a jurisdictional defect, the argument for judicial
intervention is less weighty. The interpretation of a statute is dif-
ficult at the best of times, and more than one meaning is often
possible. In this circumstance, is the court’s view more likely to
be correct than that of the agency? In the great majority of cases,
it is suggested, the agency is probably much closer to the situation
designed to be covered by the statute, and therefore is in a better
position to interpret the provision in accordance with the legislative
objective.
As matters now stand, however, the court is permitted to arrive
at its own interpretation in the absence of a privative clause. An
alternative position widely recognized in the United States is that
82 Supra, f.n.1.
83 Supra, f.n.69.
84 In The Dominion Canners Ltd. v. Costanza, [1923] S.C.R. 46, 54 Duff,.
looked to the objectives of workmen’s compensation legislation to uphold the
privative clause, as did Judson,J. in Alcyon Shipping Co. Ltd. v. O’Krane,
[1961] S.C.R. 299, 304-305. HallT., delivering the judgment of the Court in
Bakery and Confectionery Workers International Union of America Local 468
v. White Lunch Limited, [1966] S.C.R. 282, 292-293, spoke to the general intent
of labour relations legislation to achieve industrial peace and provide a forum
for quick determination of labour-management disputes as something not
to be whittled down in the face of the expressed will of legislatures. On this
point, see: Laskin, Certiorari to Labour Boards: The Apparent Futility of
Privative Clauses, (1952) 30 Can. Bar Rev. 986; and Carter, The Apparent
Virility of Privative Clauses, (1967) U.B.C.L.Rev. – C. de D. 219, for excellent
discussions of the policy issues.
1974]
THE INDIVIDUAL AND THE BUREAUCRACY
the agency’s view should prevail if it has a “rational basis”, even
though the court would prefer a different interpretation. 5 This
approach obviously provides a narrower scope of review than the
present English and Canadian stance, but would seem more in
keeping with the premise that the agency’s qualifications should
be recognized unless in conflict with fundamental values of the
legal order. If the rational basis test were applied by our courts
with the same restraint that they display in the area of discretion,
then unwarranted judicial intervention for error of law would rarely
occur.
For questions of fact, the trend has not been to a wider scope
of judicial review. Although the McRuer Commission recommended
a broader approach comparable in some respects to the “substan-
tial evidence” standard in the United States, 6 and thus would in-
volve the court in weighing the evidence, the Judicial Review Pro-
cedure Act passed by the Ontario Legislature in response to other
recommendations of the McRuer Commission expressly reaffirms
the common law “no evidence” rule.87
On the other hand, the new Federal Court Act provides for
review by the Federal Court of Appeal where the federal board,
commission or other tribunal “based its decision or order on an
erroneous finding of fact that it made in a perverse or capricious
manner or without regard for the material before it”.88 Exactly
what test in currently recognized terms has been enunciated by
Parliament with this provision is unclear. Some suggest that it
introduces the American “substantial evidence on the record as
a whole” position; 9 others speculate that it merely affirms the
85 For a statement of the “rational basis” test, see: Davis, supra, f.n.73, at
s.30.05; and the leading case of National Labour Relations Board v. Hearst
Publications, Inc., 322 U.S. 111, 131 (S.C., 1944). For an interesting comparison
of the British and United States positions, see Wade, supra, f.n.66, 241-247.
8 6 McRuer Report, supra, f.n.61, 172-73, 261-263, 291-293, 310-313, although
said to be modified in the Model Act wording “clearly erroneous in view of
the reliable, probative, and substantial evidence on the whole record”. This
language would seem to be a significant departure from the United States
position, which is set forth in Davis, supra, f.n.73, 29, and Jaffe, Judicial
Control of Administrative Action, 595-604. Universal Camera Corp. v. National
Labour Relations Board, 340 U.S. 474 (1951)
is the authoritative case. For
the comparative approach, again see Wade, supra, f.n.66, 229-240.
87 S.O. 1971, cA8, s.2(3). A comprehensive review of the rule appeared re-
cently: Elliott, “No Evidence”: A Ground of Judicial Review in Canadian
Administrative Law?, (1972-73) 37 Sask.L.Rev. 48.
88 S.C. 1970, c.1, s.28 (1) (c).
89 Professor Hogg alludes to this possible effect in his article. Elliott, supra,
f.n.87, 100 suggests that if section 28(1) (c) resembles anything, it is the ‘clearly
erroneous’ formula used in some jurisdictions of the United States.
McGILL LAW JOURNAL
[Vol. 20
“no evidence” rule previously regarded as the common law posi-
tion 0 Perhaps it is a new and different approach.
The “no evidence” rule is sufficiently narrow that judicial inter-
vention on questions of fact is limited to extreme situationsY1 This
assumes, of course, that courts do not seek to avoid the strictures
of the “no evidence” rule by adding the words “of probative value”
or the like as has happened in some instancesf 2 Except for the
uncertainty created by the new Federal Court Act provision, there-
fore, the Canadian position on judicial review of factual questions
is satisfactory.
Requirements of Natural Justice
No one would dispute that administrative agency proceedings
should be procedurally fair for the parties concerned. Few would
suggest that administrative agencies willfully violate the principles
of natural justice so as to inflict harm on the parties before them.
A procedural defect will more likely arise through inadvertence
or lack of awareness. The new Statutory Powers Procedure Act 93
in Ontario, based to a considerable extent on the recommendations
of the McRuer Commission, is therefore a commendable piece of
legislation in that it extensively codifies the common law rules
of natural justice. 4 With these guidelines, administrative decision-
00Mullan, The Federal Court Act: A Misguided Attempt at Administrative
Law Reform?, (1973) 23 U. of T. L.. 14, 38-40. His conclusion is, however, that
section 28(1)(c) has worked a broadening of the scope of judicial review.
01Lord Sumner in The King v. Nat Bell Liquors, Ltd., supra, f.n.1, 149-150
so asserts. Elliott, supra, f.n.87, 65-66 lists 22 reported Canadian cases which
have applied the “no evidence” rule since Nat Bell Liquors, and 23 cases
holding that there was some evidence in the particular case. This suggests
that the “no evidence” rule retains some punch.
02For example, in Re Sisters of Charity, Providence Hospital and Labour
Relations Board, [1951] 3 D.L.R. 735 (Sask. C.A.), and Children’s Aid Society
of the Catholic Archdiocese of Vancouver v. Salmon Arm, [1941] 1 D.L.R. 532
(B.C. C.A.).
03 S.O. 1971, c.47. An informative guide to the new Ontario legislation and
the Statutory Powers Procedure Act in particular is Mundell, Manual of Prac-
tice on Administrative Law and Procedure in Ontario (1972). See also Atkey,
The Statutory Powers Procedure Act, 1971, (1972) 10 Osgoode Hall L.J. 155.
04 It does not, however, exclude the common law rules as is pointed out
by Mundell, supra, f.n.93, 23-24, offering section 21 of the Act on adjournments
as an example. The “minimum” nature of the statutory expression was stressed
by the Minister at the time of the debate in the Ontario Legislature: Legisla-
ture of Ontario Debates, 4th Sess., 28th Legis., 20 Eliz. II (1971), 3166-3167.
1974]
THE INDIVIDUAL AND THE BUREAUCRACY
making in Ontario should be able to avoid procedural pitfalls to
a much greater degree than in the past 5
Further, the new Judicial Review Procedure Act in Ontario
follows a recommendation of the McRuer Commission that where
the sole ground for relief established is a defect in form or a tech-
nical irregularity and no substantial wrong or miscarriage of justice
has occurred, the court may refuse relief and validate the decision
of the agency notwithstanding the defect.9 6 If Ontario courts exer-
cise the discretion conferred by this provision, the upsetting of an
agency decision for a minute and insubstantial breach of natural
justice will not be a problem.
The key question is not whether there should be review of
administrative agency procedures so that they conform to the
principles of natural justice, but whether a court is the only body
with the qualifications to ensure adherence. Courts do, of course,
deal with criminal and civil procedure questions from day to day
in a highly competent manner. However, their very competence
in courtroom procedure may lead them to impose too high and
technical a standard on administrative agencies. A specialized and
expert understanding of natural justice principles with the assist-
ance of guidelines such as those set forth in the Statutory Powers
Procedures Act could be acquired by a body other than the tradi-
tional courts. In short, it cannot be said absolutely that only a
court can ascertain and apply the principles of natural justice to
an administrative agency. Other vehicles and methods may be capa-
ble of performing this task equally well or better.
Exclusion of Judicial Review
Legislatures have responded to judicial review regarded as un-
desirable, of course, by inserting privative clauses in statutes. These
attempts have been many and varied, but Canadian courts have
been particularly ingenious on occasion in circumventing them with
the simple and superficially plausible argument that surely the
legislature did not intend that the administrative agency should
act beyond the powers conferred on it by the statute.” It has been
95 An argument can be made, however, that embodying minimum rules of
natural justice in statutory form will increase the volume of litigation as
questions arise on the interpretation of the statutory provisions, and thereby
achieve an undesirable result.
96 S.O. 1971, c.48, s.3, enacting the recommendation of the McRuer Report,
supra, f.n.61, 315 (Report No. 1, vol. 1, 1968).
97 Mentioned supra with respect to the concepts of jurisdiction.
McGILL LAW JOURNAL
[Vol. 20
relatively easy for the courts to proceed then to discover a so-called
jurisdictional defect of a highly technical nature. 8 Legislatures
have from time to time replied with more creative exclusionary
clauses covering jurisdictional errors, which further challenge the
ingenuity of the judiciary, and so the game continues. 9
By and large, however, the legislatures are winning the dispute
and the courts increasingly are recognizing the sovereignty of the
legislature. A succession of cases in the Supreme Court of Canada
during the early 1960’s confirmed the effectiveness of exclusionary
provisions found in most workmen’s compensation legislation. 10
On the other hand, the labour relations field has given rise to very
mixed results. From widespread judicial intervention despite priva-
tive clauses in the late forties and early fifties, an increasing trend
to recognition of their validity by the courts has been observed. 10′
In the Supreme Court of Canada, however, the lack of a coherent
approach in labour relations cases makes prediction of the result
in this field very uncertain. 10 2 Recently the Supreme Court of Can-
ada in an immigration case, Pringle v. Fraser,-0 3 has indicated
that where a statutory scheme adequately provides for appeal pro-
cedures, the privative clause in the statute will be respected.
Where a legislature has come to the conclusion in reasonably
clear statutory language that it wishes to exclude judicial review,
the courts surely should respect that intention.’ – In the Canadian
08 On this, see Laskin, supra, f.n.84, 992, 994-996; Carter, supra, f.n.84, 224-227;
Strayer, The Concept of Jurisdiction in Review of Labour Relations Board
Decisions, (1963) 28 Sask. Bar Rev. 157; and Pink, Judicial “Jurisdiction” in
the Presence of Privative Clauses, (1965) 23 U. of T.Fac.L.R. 5, 13.
0) This classic battle was fought in the Province of Saskatchewan in the
late forties and early fifties, and prompted Laskin’s celebrated article, supra,
f.n.84. Carter’s sequel, supra, f.n.84, indicates the swing in the other direction,
followed shortly by Norman, The Privative Clause: Virile or Futile?, (1969)
34 Sask.L.R. 334.
‘ooAlcyon Shipping Co. Ltd. v. O’Krane, [1961] S.C.R. 299; Farrell v. Work-
men’s Compensation Board, [1962] S.C.R. 48; Workmen’s Compensation Board
v. Rammell, [1962] S.C.R. 85; Re Kinnaird v. Workmen’s Compensation Board,
[1963] S.C.R. 239.
1o Supra, f.n.99.
‘o2 Weiler, supra, f.n.10, 32-33.
103 [1972] S.C.R. 821.
104 The vagaries of the English language are such, however, that clarity
is not easy and probably no privative clause is immune to the semantics of
the “jurisdiction” game. De Smith, supra, f.n.1, 347 was moved to say: “In
Canada, where apparently unambiguous privative clauses have often been
embodied in legislation setting up administrative boards, restrictive inter-
pretation has been carried so far that at times they have been rendered
almost meaningless.”
19741
THE INDIVIDUAL AND THE BUREAUCRACY
system of government, the legislature is sovereign and supreme
within the provisions of the British North America Act. Observance
of legislative dictates is also a part of the “rule of law”, and judi-
cial intervention to thwart legislative objectives is a violation
thereof. If we wish to make an exception for civil libertarian values,
that is surely acceptable, but the Canadian experience shows that
our courts have not always restrained their intrusions to this lim-
ited domain in the face of privative clauses. 10 5
A role for courts in the protection of civil liberties through
judicial review of administrative action is acknowledged, but pre-
servation of proprietary values by the judiciary is likely to lead
to conflict with valid legislative objectives. The ground of jurisdic-
tional error should be limited to questions of capacity to com-
mence the administrative proceeding, without artificial contortions
to bring the very matters to be decided by the agency under the
statute within the term “jurisdiction”. Judicial restraint in review-
ing administrative discretion to this point in time has been salu-
tary, and the same is largely true for questions of fact. A substitu-
tion of the court’s interpretation on questions of law, however,
might better give way to a position which recognizes the agency
view if it has a “rational basis” although the court would not have
come to the same conclusion. An observance of the principles of
natural justice should continue to be required of agencies, but a
more appropriate supervisory forum and methods might be found.
Finally, privative clauses excluding judicial review are in need of
wider recognition by the courts in the interests of the “rule of
law’.
III. ALTERNATIVES TO JUDICIAL REVIEW
To this point, I have endeavoured to show that judicial review
of administrative action is inadequate in a number of respects, and
that its present scope should be narrowed. It would seem incumbent
on me, therefore, to suggest alternatives which might be more
effective. As in most situations, recognizing the problems is easier
than providing the solutions, but the following possibilities may
be worthy of consideration.
105 The distinction between civil libertarian and proprietary values has been
considered previously in the lecture with respect to Bell v. Ontario Human
Rights Commission, supra, f.n.59.
McGILL LAW JOURNAL
[Vol. 20
On the Basic Level
To begin with that which is axiomatic, any administrative agency
is only as good as the quality of its personnel. Highly qualified
administrators should produce results that largely obviate the need
for judicial review. Although government administration on al
levels in Canada is blessed with many able and dedicated public
servants, personnel weaknesses will exist as in any other human
institution.
Even a cursory look at salary structures within government
service compared to those in the private sector reveals a very signi-
ficant differential for comparable qualifications.106 If the public
wants the best in administrative decision-making, it must be pre-
pared to pay a competitive price. The mentality of the taxpayer,
it is probably fair to say, is more directed to obtaining the most
for the least. The politician who must go to the electorate periodi-
cally is acutely aware of public reaction to increased government
salaries leading to higher taxes. An expectation that underpaid
public employees will produce the high quality of government ad-
ministration which the citizen seems to demand is surely mistaken.
A less tangible and therefore more elusive element is the social
and professional standing of those who make a career in the public
service. Many administrators make decisions as important as those
handed down by judges. Yet the judiciary enjoys a respect which
is not accorded to other public servants. Although long term ap-
pointments to important regulatory agencies may not be practicable
or desirable, some form of security of tenure and independence
would do much to gain public confidence in administrative deci-
sion-making. Patronage appointments to some agencies do not en-
hance the reputation of government administration in the public
eye. What is needed is a sense of professionalism in all ranks of
the public service.
100 Statistics are available from a variety of sources, and comparisons should
be made with appropriate caution. Salaries of government employees are a
matter of public record; see, for example, Office of the Provincial Auditor,
Public Accounts for the Province of Ontario for the Fiscal Year ended 31
March 1972 (Toronto: Queen’s Printer, 1972). For the private sector, see
Department of National Revenue, Taxation Statistics Analyzing the Returns
of Individuals for the 1970 Taxation Year (Ottawa: Information Canada, 1972);
Chapman & Associates Ltd., A Report on Executive Compensation in Canada:
1969-1971 (1972). It is recognized, however, that my assertion of the existence
of a differential for comparable qualifications is subject to debate.
1974l
THE INDIVIDUAL AND THE BUREAUCRACY
Our educational institutions have only recently become seriously
interested in training and preparation for public service.’17 In these
endeavours, we probably have something to learn from civil law
jurisdictions in continental Europe. 08 Continuing education pro-
grammes for those already employed by government would appear
to be another largely unexplored field. We in the law schools un-
doubtedly have a contribution to make in these new directions,
both for law students who will seek public administration careers
in increasing numbers and for students in other disciplines of the
university community.
Delivery of Legal Services
Because the services of the legal profession command a com-
paratively high fee, lawyers are usually brought into an adminis-
trative agency proceeding by a client only if the stakes are high
enough in economic terms. As a result, persons of modest means
or those who have what appears to them to be a relatively straight-
forward problem, are likely to handle their dealings with govern-
ment agencies themselves without the benefit of legal advice.10 9
In many instances, the matter will work out to the satisfaction
of the citizen, but in other situations, he encounters difficulty,
frustration and annoyance, becoming greatly disenchanted with
government from his experience.
107 Carleton University appears to have been the first Canadian institution
for post-secondary education to have developed a specialized interest through
its School of Public Administration. For a description of the public law
content of the Carleton programme, see Abbott, Legal Studies at Carleton
University, (1964) 1 Can. Legal Studies 71. York University recently established
a Faculty of Administrative Studies which offers a Masters degree in Public
Administration, and other Canadian universities have developed similar pro-
grammes of various kinds. Community colleges and other institutions of
post-secondary education probably have a role to play in training public
administrators at a more basic level, while the secondary school curriculum
is also showing signs of an increased awareness of governmental endeavours.
108 An excellent description of European legal education and its public
dimensions is provided by Schweinburg, Law Training in Continental Europe:
Its Principles and Public Function (1945).
109 Discussed supra in the first part of this article on the high cost of
litigating and on those who use judicial review. For a very interesting study
of the need for legal services by those who do not fall within poverty guide-
lines, see Standing Committee of the California State Bar on Group Services,
Report on Group Legal Services, (1964) 39 Calif. State Bar J. 639, 652. Dis-
tribution of legal services in civil matters is given thoughtful and provocative
treatment in Countryman and Finman, The Lawyer in Modern Society (1966),
535-576.
McGILL LAW JOURNAL
[Vol. 20
What I am wondering, therefore, is whether a new form of
delivery of legal services on the administrative agency level could
not accommodate individuals in these circumstances. Some move-
ment in this direction can already be discerned. Storefront and
voluntary legal aid clinics are attracting a certain amount of this
kind of traffic. Advice on immigration matters is obtainable with-
in ethnic communities. Union representatives often assist members
in claiming workmen’s compensation benefits, and a voluntary
group has been formed in Ontario to help workmen resolve their
claims satisfactorily.110 Legion organizations aid veterans and de-
pendents in obtaining pension and other statutory benefits.
There would appear to be significant potential for development
of a new type of law practice to service clients in their dealings
with administrative agencies. As the exclusive participation of law-
yers would be uneconomic in terms of the income expectations of
the legal profession, substantial use of paraprofessionals would
be anticipated. In this regard, it should be noted that the new
Statutory Powers Procedure Act in Ontario sanctions the appear-
ance of personal representatives who are not required to be lawyers
at agency hearings.”‘
An impediment to participation by lawyers in these develop-
ments at the moment, however, is the prohibition against holding
oneself out as a specialist in a given field. De facto specialization
has already arrived in the legal profession as we all know, and
recognition of it in an official way should not be long in forth-
coming.1 2 When it does, it will facilitate the building up of an
110 Called the Injured Workmen’s Consultants, it was founded by a claimant
aggrieved by his unsatisfactory experience with the Ontario Workmen’s Com-
pensation Board. Financed by the federal government and private grants, in
1972 it had seven full-time and thirty part-time employees, the latter group in-
cluding law students, social workers and medical students, and an active
caseload of 1,700 claims: The Globe and Mail, Wednesday, June 14, 1972, 5
(cols. 1-3). In June of 1972, the Injured Workmen’s Consultants presented a
highly critical brief on the Board to the Ontario Legislature’s Standing Com-
mittee on Resources Development: The Globe and Mail, Tuesday, June 27,
1972, 42 (cols. 6-9).
1 Supra, f.n.93, s.10. Note that section 23 of the Act also provides for ex-
clusion from a hearing of anyone appearing as an agent who is found by the
tribunal not to be competent to do so.
112 The Benchers of the Law Society of Upper Canada established a Special
Committee on Specialization in the Practice of Law which in a report dated
October 19, 1972 asserted “that a plan should be adopted in Ontario to train,
test and qualify specialists in certain areas of the practice of law”. The report
was adopted in principle by the Benchers in Convocation on November 17,
1972: Minutes of Convocation, [1973] 2 O.R. ccx/iii, ccx/vi – cc/ii (includes
the Special Committee report).
1974]
THE INDIVIDUAL AND THE BUREAUCRACY
administrative law practice of the type envisaged with the use
of paraprofessionals. The result may well be a more effective work-
ig of the administrative process.
Where is the Ombudsman?
One of the significant developments of recent date relating to
resolution of grievances by citizens against government has been
the institution of the Ombudsman.”‘ Although of Scandinavian
origin, the Ombudsman has enjoyed a successful transferral to
common law jurisdictions with appropriate adjustments to na-
tional, provincial or local conditions. New Zealand was once again
the pioneer for the introduction of a new concept,” 4 followed by
the United Kingdom 115 and seven Canadian provinces.” 6
In the Province of Quebec, the Public Protector, as the Ombuds-
man figure is called, handled 9,962 complaints in his first two
113 For a description, see: Rowat (ed.), The Ombudsman: Citizens’ Defender
2d ed. (1968); Gellhorn, Ombudsmen and Others: Citizens’ Protectors in Nine
Countries (1967); and Rowat, The Ombudsman Plan: Essays on the Worldwide
Spread of an Idea (1973).
114 See: Northey, “New Zealand’s Parliamentary Commissioner” in Rowat
(ed.), supra, f.n.113, 127; GelLhorn, supra, f.n.113, 91; Sir Guy Powles, The
Office of Ombudsman in New Zealand: Its Origin and Operation, (1964) Can.
Bar Papers 1; Sir Guy Powles, The Citizen’s Rights against the Modern State
and Its Responsibilities to Him, (1964) 3 Alta.L.Rev. 164; Sir Guy Powles,
Aspects of the Search for Administrative Justice with Particular Reference
to the New Zealand Ombudsman, (1966) 9 Can. Pub. Admin. 133. Sir Guy
Powles is, of course, the first New Zealand Parliamentary Commissioner.
115 An early call for a British Ombudsman was Utley, Occasion for Ombuds-
man (1961). In the same year, the “Whyatt Report” by “Justice” entitled The
Citizen and the Administration: The Redress of Grievances (1961)
recom-
mended that an Ombudsman be introduced. Sir Edmund Compton, The Parlia-
mentary Commissioner for Administration, (1968) 10 J.Soc.Pub. Teachers L.
(N.S.) 101 became the first incumbent on passage of the legislation. For
commentary, see: Garner, The British Ombudsman, (1968) 18 U. of T. L.J. 158;
Stacey, The British Ombudsman (1971); and Wade, The British Ombudsman:
A Lawyer’s View, (1972) 24 Admin.L.Rev. 137.
116 Canadian Ombudsman developments of recent date are reviewed by
Rowat, The Ombudsman Plan, supra, f.n.113, 97. Compare to his earlier piece
with Lambias in Rowat (ed.), supra, f.n.113, 196; and Anderson, Canadian Om-
budsmah Proposals (1966). In two Provinces, Ombudsman legislation has been
passed but the statutes have not yet been proclaimed in force: The Parlia-
mentary Commissioner (Ombudsman) Act, S.Nfld. 1970, c.30, and The Ombuds-
man Act, S.S. 1972, c.87. According to Rowat, The Ombudsman Plan, supra,
fm.113, 100, the Newfoundland legislation has been stalled by a change in
government, but a Saskatchewan Ombudsman is imminent.
McGILL LAW JOURNAL
[Vol. 20
years and eight months of operation;117 the Alberta Ombudsman
deal with 2,727 grievances in slightly over four years; 1 8 in New
Brunswick, the Ombudsman received 1,378 complaints in four and
a half years; 119 1,216 matters were brought to the Manitoba Om-
budsman in his first three years; 120 and the Nova Scotia Ombuds-
man has handled 524 complaints after sixteen months in office. 121
The figures are significant when one considers that few of these
complaints would have been suitable for judicial review.
We in the Province of Ontario have not been so fortunate, and
it is difficult to understand the reluctance to take what would
appear to be a positive step in providing the citizen with a mecha-
nism for investigation and possible resolution of his grievance
against some aspect of government administration. 12 2 The establish-
ment of a federal Ombudsman in Canada is a more complex issue,
but the difficulties would not necessarily appear to be insurmount-
able. A decentralized approach might be feasible, or even a single
federal Ombudsman in Ottawa with sufficient personnel efficiently
organized to cope with the volume of complaints.-‘
117 The Public Protector: Third Annual Report (1971), 203. The office was
established under The Public Protector Act, S.Q. 1968, c.11.
118 Report of the Ombudsman (Edmonton: Queen’s Printer 1968, 1969, 1970,
1971). The Alberta Ombudsman was Canada’s first (The Alberta Ombudsman
Act, S.A. 1967, c.59) and has accordingly received considerable public attention.
See: Sawer, The Ombudsman Comes to Alberta, (1968) 6 Alta.L.Rev. 95; Mc-
Donald, The Alberta Ombudsman Act, (1969) 19 U. of T. L.J. 257; and Fried-
mann, The Alberta Ombudsman, (1970) 20 U. of T. L.J. 48. In Re Alberta Om-
budsman Act (1970), 10 D.L.R. (3d) 47 (Alta. S.C.) the jurisdiction of the
Alberta Ombudsman to investigate a decision of the Provincial Planning Board
was upheld.
119 Fifth Report of the Ombudsman (Fredericton: Province of New Bruns-
wick, 1971), 10. The Ombudsman Act, S.N.B. 1967, c.18 is reviewed by Reid,
(1968) 18 U. of T. LJ. 361.
120 Report of the Ombudsman (Winnipeg: Province of Manitoba, 1970, 1971,
1972), 4, 3, 6 respectively. In 1965 a brief was presented by the Manitoba Bar
Association to the Manitoba Legislature’s Committee on Orders and Regula-
tions: An Ombudsman for Manitoba, (1966) 2 Manitoba LJ. 61. The Ombuds-
man Act, S.M. 1969 (2d Sess.), c.26 is commented on by Northey, (1970) 4
Manitoba LJ. 206.
121 Report of the Ombudsman (Halifax: Province of Nova Scotia, 1971, 1972),
21-34, 62. Nova Scotia’s Ombudsman was created by the Ombudsman Act,
S.N.S. 1970-71, c.3.
122 Although many of the recommendations of the McRuer Report, supra,
f.n.61 were implemented by legislation, its thorough study and conclusion in
favour of a Parliamentary Commissioner similar to the New Zealand model
(Report No. 2, vol. 4, 1340-1390) has not enjoyed the same success.
‘2 The case for a Federal Ombudsman is strongly advocated by Rowat in
The Ombudsman Plan, supra, f.n.113, 106-115, which reflects his earlier writing
19741
THE INDIVIDUAL AND THE BUREAUCRACY
The Ombudsman cannot be a panacea for all the problems of
citizens with government administration, but it clearly would be
of assistance to a large number for whom judicial review is not
a realistic avenue of redress.
A Specialized Forum for Review
Some form of independent review of an administrative decision
may be desirable in many instances. Whether the reviewing body
needs to be a generalist court of the traditional variety is the rele-
vant question. The establishment of a Divisional Court with power
to review decisions of administrative agencies in the Province of
Ontario was at least a step in the direction of having a single body
bring some focus to the administrative law field in which it will
build up a certain expertise. 124 At the same time, the Divisional
Court handles many other matters 125 and it comes to the adminis-
trative law field with understandable preconceptions based on
history, experience and case law in regard to administrative agen-
cies. An appeal lies with leave on any question not of fact alone
to the Court of Appeal, 20 and ultimately to the Supreme Court of
Canada, 12
7 which gives rise to the possibility of a very lengthy judi-
cial proceeding. It is too early as yet to evaluate whether the
Divisional Court will live up to the mixed expectations of it, but
it deserves a fair chance.
An alternative worthy of serious consideration, it is suggested,
would be an independent review body for administrative agencies
within provincial or federal jurisdiction, as the case may be. Es-
sential to its success would be a simple and inexpensive procedure.
The French model, called the Conseil d’Etat, is well-known and
highly regarded in many quarters, the essential principles of which
on the topic. Sheppard, An Ombudsman for Canada, (1964) 10 McGill L.J. 291,
327-329, 335-337 discusses some aspects of an Ombudsman on the federal scene.
124 Supra, f.n.8. This development was the result of a recommendation of
the McRuer Report, supra, f.n.61, vol. 2, 663-668. One criticism of the Divisional
Court in practice, however, is that its judiciary has changed from one sitting
to another, with the result that an expertise in administrative law matters
is not being acquired by the Bench. If this is a problem, it would seem
easily remedied by an appropriate adjustment in the Supreme Court of
Ontario calendar with respect to judicial assignments.
125 The Judicature Act Amendment Act, 1971, supra, f.n.8, s.1 repealed section
17 of The Judicature Act, R.S.O. 1970, c.228, and substituted a new section
setting forth the jurisdiction of the Divisional Court in various matters.
126Ibid., s.3, repealing section 29(1)(2) of The Judicature Act and substi-
tuting a new section 29(1) therefor.
127 Supreme Court Act, R.S.C. 1970, c.S-19, ss.35-45.
McGILL LAW JOURNAL
[Vol. 20
might be adaptable to our common law situation.1 28 Public accept-
ance, however, would be critical. The review body would need to
have a clearly established independence from all aspects of politics
and government. This would probably require tenure of office and
attractive emoluments to ensure a highly qualified membership.
It could be labelled as an administrative court.u 9 Further review
or appeal might be excluded, except where fundamental legal values
such as civil liberties are in issue, so that a prolongation of pro-
ceedings and substitution of judicial views would not be possible.
What it could bring to the administrative law field is a greater
perspective and understanding of the role and function of adminis-
trative agencies with less prospect for unwarranted intervention
in the guise of generalist values.
The Role of Legal Education
For a moment, it may be useful to indulge in a few words of
self-evaluation. We who teach in the law schools have largely per-
petuated the traditional thinking on judicial review of adminis-
trative action. Perhaps this is because we assume that most law
school graduates will go forth and do battle with administrative
agencies in the courts on behalf of an aggrieved citizen as a client.
After a law student has been thoroughly indoctrinated in the judi-
cial process through the first year curriculum, he or she can hard-
ly be expected to approach the administrative law course in the
second or third year of law school with an open mind.
128 Increased common law interest in the Conseil d’Etat and French ad-
ministrative law in recent years is reflected in the quantity of writing now
available in English. For a selection, see: Brown -nd Garner, French Adminis-
trative Law (1967); Freedman, The Conseil d’Etat in Modern France (1961);
Schwartz, French Administrative Law and the Common-Law World (1954);
Hamson, Executive Discretion and Judicial Control: An Aspect of the French
Conseil d’Etat (1954); and Cake, The French Conseil d’Etat – An Essay on
Administrative Jurisprudence, (1972) 24 Admin.L.Rev. 315 for a briefer treat-
ment, among many others. The McRuer Report, supra, f.n.61, 1410-1473
(Report No. 2, vol. 4, 1969), gave extensive consideration
to the French
administrative court system, but did not favour its adoption in Ontario for
a variety of reasons, the “insuperable barrier” being the appointment of
‘superior court’ judges under section 96 of the British North America Act.
It is difficult to comprehend why section 96 should pose any greater problem
for administrative courts if introduced, than for the present superior courts
in Ontario. Since Labour Relations Board of Saskatchewan v. John East Iron
Works Ltd., [1949] A.C. 134 (P.C.), section 96 may even be less of an obstacle.
120The idea is being mooted in the United States: Nathanson, Proposals
for an Administrative Appellate Court, (1973) 25 Admin.L.Rev. 85.
19741
THE INDIVIDUAL AND THE BUREAUCRACY
Another important factor in our present approach is the avail-
ability of teaching materials. Principally, these have been cases
illustrating judicial intervention where an administrative agency
has overstepped statutory boundaries. As a result, many law students
seem to emerge from the basic course in administrative law think-
ing that government agencies are committing jurisdictional excesses
and denials of natural justice with abandon. What we may fail to
convey as a counterweight is the positive and constructive view of
the administrative process. How suitable teaching materials can
be designed to communicate the broader picture is not easy to
answer. As an increasing number of law school graduates seek em-
ployment in government, business and other endeavours outside
the practice of law itself, we can no longer justify the narrowness
of our teaching vehicles. To this point, however, we have failed to
come up with viable alternatives. 130
One last comment goes to teaching method. In addition to, or
in substitution for the classroom, the clinic operation would seem
admirably suited for teaching administrative law.131 Existing clinic
programmes already include administrative agency problems as
standard fare, but the concept could be expanded along more special-
ized paths including the placement of law students in government
offices for a first hand look at the other side of the coin. Law schools
130 This is not to suggest, however, that experimentation is not taking
place in many Canadian law schools. Professor John Willis has produced a
fascinating collection of materials entitled Cases and Readings on Public
Authorities (Toronto: Faculty of Law, University of Toronto, 1971) for use
by his class in Administrative Law. Professor Hudson Janisch’s Administrative
Law Materials (Halifax: Faculty of Law, Dalhousie University, 1972-73) make
use of a “file” on various administrative agencies for his course on the
subject. One also cannot overlook law teaching developments in the United
States, such as the distinctive approach of Auerbach, Garrison, Hurst and
Mermin, The Legal Process: An Introduction to Decision-Making by Judicial,
Legislative, Executive and Administrative Agencies (1961).
131 Clinic programmes are regarded, of course, as the great new discovery
in legal education. Medical education has long used the clinic setting, and
it was advocated for law schools some years ago by Frank, Why Not a
Clinical Lawyer School?, (1933) U.Pa.L.Rev. 907. For developments in the
United States, Ferren, Goals, Models and Prospects for Clinical-Legal Educa-
tion, (1969) 20 U. Chicago L. School Conference Series 94 and Gorman, Clinical
Legal Education: A Prospectus, (1971) 44 So.Calif.L.Rev. 537 are two among
a host of articles. Introduction of clinics to provide legal services for indigent
persons in Canada, and its relation to clinic programmes in law schools, are
explored by Lowry, A Plea for Clinical Law, (1972) 50 Can. Bar Rev. 183, who
cites a number of publications on the subject. Most Canadian law schools
have established legal aid clinic operations of various kinds or are in the
process of doing so.
212
McGILL LAW JOURNAL
[Vol. 20
have only begun to scratch the surface in clinical training, and the
administrative law field offers obvious potential for future develop-
ment.
Do We Need It?
Judicial review of administrative action is still needed, although
its scope should be narrowed and its inadequacies should lead us
to consider other forms of supervision. Where civil libertarian values
are at stake or constitutional questions are in issue, judicial review
will continue to be the most satisfactory and acceptable form of
control. One would hope that courts will exercise substantial re-
straint in other situations. If they fail to do so, legislative restriction
or exclusion of their supervisory role is clearly justified. Over the
long haul, however, judicial review of administrative action will
most likely be of declining importance as more effective and appro-
priate means of overseeing the actions of administrative agencies
gradually develop.
