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Administrative Decision and the Law: The Views of a Lawyer*

Published online by Cambridge University Press:  07 November 2014

John Willis
John Willis*
Affiliation:
University of British Columbia
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Abstract

The purpose of this paper is to consider the implications for Canadians of the recent report of the Franks Committee on administrative justice in England. This is the second English report of its kind to be made in twenty-five years, the first being the famous Report of the Committee on Ministers' Powers in 1932. Both committees made exhaustive inquiries into the actual day-to-day working of English administrative justice and in the light of that knowledge made recommendations for its improvement. In the United States, the Report of the Attorney General's Committee on Administrative Procedure reviewed in 1941 the federal administrative process as it actually operated; in the light of that report, Congress passed in 1946 the Administrative Procedure Act laying down in fairly general terms the minimum standards of procedure to be observed in the administrative exercise of delegated powers of adjudication; and in 1955 a Task Force on Legal Services and Procedure made a year-long study of the entire field of federal administrative law and submitted its conclusions in a 442-page report to the Hoover Commission. In Canada there has never been any offiicial inquiry into such questions.

For this reason—and we should do well to admit it before we begin trying to learn lessons from the Franks Report—we Canadians do not know much about our own situation. We do know that in our country, as in England and in the United States, there is at the federal level and at the provincial level a heterogeneous collection of bodies other than courts—independent commissions, civil service departments, and other statutory authorities—deciding disputes between that mighty engine, the state, and the individual citizen or business corporation; but of what most of them in fact do, how they do it, and to what extent they are supervised, checked, or controlled, we have only hazy and rather general knowledge.

Type
Research Article
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 24 , Issue 4 , November 1958 , pp. 502 - 511
Copyright
Copyright © Canadian Political Science Association 1958

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Footnotes

*

This paper was presented at the annual meeting of the Canadian Political Science Association in Edmonton, June 6, 1958, at a joint session with the Canadian Law Teachers' Association.

References

1 Cmd. 218, Report of the Committee on Administrative Tribunals and Enquiries (July, 1957). The report has been commented on from the English point of view by Robson, W. A., “The Franks Report,” Public Law, II, 1958, 12 Google Scholar, and by Wade, E. C. S., “Administration under the Law,” Law Quarterly Review, LXXIII, 1957, 470.Google Scholar

2 Cmd. 4060 (1932).

3 See Schwartz, Bernard, “Memorandum to the Committee on Administrative Tribunals and Enquiries,” Canadian Bar Review, XXXV, 1957, 743, 747–54.Google Scholar

4 All we have is a handful of quite general studies of particular boards. Those calling for special mention are: Willis, John, ed., Canadian Boards at Work (Toronto, 1941)Google Scholar; Currie, A. W., “The Board of Transport Commissioners as an Administrative Body,” this Journal, XI, no. 3, 08, 1945, 342 Google Scholar; Relph, H. S., “Quasi-Judicial Powers under the Unemployment Insurance Act,” Canadian Bar Review, XXVI, 1948, 500 Google Scholar; and Cameron, W. W., “Regulation and Distribution of Securities in Ontario,” University of Toronto Law Journal, X, no. 2, 1954, 199.CrossRefGoogle Scholar

5 Cmd. 218, Parts IV and V, esp. pars. 242–78.

6 Ibid., chap, XXIII, pars. 327–46, and Jaffe, Louis L., “The American Administrative Procedure Act,” Public Law, I, 1956, 227–8.Google Scholar

7 Cmd. 218, par. 406.

8 Reid, R. F., in the introduction to his lectures to Ontario lawyers on “Administrative Law: Rights and Remedies” in Special Lectures of the Law Society of Upper Canada (Toronto, 1953), 1–2.Google Scholar

9 Cmd. 218, pars. 303, 22.

10 “How a Lawyer Thinks,” Lancet, CCLXX, 1956, 2.Google Scholar

11 Cmd. 218, pars. 26–31.

12 Ibid., pars. 262–77.

13 Ibid., par. 405.

14 New York Times, Sunday ed., Feb. 23, 1958; and “Letter from Washington” dated Feb. 20, 1958, in New Yorker, 03 1, 1958, 89.Google Scholar

15 Cmd. 218, par. 278.

16 Ibid., pars. 21–5.

17 Ibid., par. 14. Robson is highly critical of this hiatus in the terms of reference; see his “The Franks Report,” 13–14.

18 Removing to an independent third party the power of appointing the members of tribunals and the inspectors. Cmd. 218, par. 409, recommendations (2) and (70).

19 In this passage I have drawn on my paper, “The Citizen's Right to an Impartial Tribunal” in Institute of Public Administration of Canada, Proceedings (1956), 275–85Google Scholar, and in U.B.C. Legal Notes, II, 1957, 427.Google Scholar

20 Committee to Study Combines Legislation, Report (Ottawa, 1952), 29–31.Google Scholar

21 Royal Commission on Broadcasting, Report (Ottawa, 1957), 25.Google Scholar

22 Cmd. 218, pars. 303, 22.

23 L'Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; [1953] 4 D.L.R. 161.

24 Board of Health for Salt-fleet Township v. Knapman, [1954] 3 D.L.R. 760; aff'd. [1955] 3 D.L.R. 248; aff'd. (1957) 6 D.L.R. (2d) 81.

25 Ontario Securities Commission v. Dohson (1957), 8 D.L.R. (2d) 604, 607. Discussions of the law on the common law right to an administrative hearing will be found in Reid, , “Administrative Law,” 6–22 (Ontario)Google Scholar and in de Smith, S. A., “The Right to a Hearing in English Administrative Law,” Harvard Law Review, LXVIII, 1955, 569.CrossRefGoogle Scholar

26 The quotations are from Jaffe, , “The American Administrative Procedure Act,” 222–4.Google Scholar

27 Cmd. 218, pars. 62–3.

28 Information derived from an unpublished paper presented to the Civil Liberties Committee in 1956 by D. W. Mundell, Q.C., of Toronto. I shall draw on this paper again at a later stage. I have not seen a copy of the draft “Administrative Procedures Act.”

29 Cmd. 218, pars. 67–102.

30 Where the ground of challenge is “error of law on the face of the record.”

31 Ibid., par. 117; and par. 409, recommendation 28.

32 Some of this paragraph is taken direct from my paper, “The Citizen's Right to an Impartial Tribunal.”

33 Cmd. 218, par. 117.

34 See the Privy Council case of Nakkuda Ali v. Jayaratne, [1951] A.C. 66.

35 See Hollinger Bus Lines v. Ontario Labour Relations Board, [1951] O.R. 562; [1952] O.R. 366. See, however, the recent English case of Vine v. National Dock Labour Board, [1957] 2 W.L.R. 106.

36 Information derived from D. W. Mundell's unpublished paper presented to the Civil Liberties Committee.

37 Cmd. 218, pars. 407, 357.

38 See Borrie, Gordon J., “The Advantages of the Declaratory Judgment in Administrative Law,” Modern Law Review, XVIII, 138 Google Scholar, and, inter alia, Re Simpsons-Sears Ltd. & Dept. Store Organizing Committee Local #1004 (1956), 18 W.W.R. 492.

39 See Canada Safeway Limited v. Labour Relations Board, [1953] 1 D.L.R. 48 (B.C.C.A.); rev'd. [1953] 3 D.L.R. 641 (S.C.C.).

40 Quotations from Robson, “The Franks Report.”