Administrative Law

Administrative Law is very similar to Constitutional Law, as it focuses on the rule-making authority of government officials. It is a branch of public law and its subject matter is the law governing the implementation of public programs, which are governed by statutes which have been enacted by legislature depending on the level of government with constitutional competence in the area. Areas such as employment, regulated industries, economic activities, professions and trades, human rights and income support are examples of issues that form a basis for administrative plans. The major institutions which deal with administrative law are legislatures, cabinet and ministers, municipalities, Crown Corporations, private bodies, and independent administrative agencies.

The legislature is where the major political decisions are discussed, debated and approved. The majority of all public programs begin with a statute which has created new legal rights and statutes. The legislation who establishes the program then has a role to play in its administration. As for the Cabinet and ministers, the Lieutenant Governor or individual ministers may be empowered to supplement the statute with legislation, or the minister may use discretionary powers that affect individuals. Municipalities also have an important impact on members of the community, at the local level, including garbage collection, police and fire services, public transport, land use planning, etc. Members of council debate and pass by-laws at public meetings, however they are subject to a measure of provincial control. Crown Corporations for the most part, are independent, so they can make commercial decisions without government interference, however the government does hold a large influence over them, which includes CBC, Air Canada, Canada Post, etc. Private bodies, on the other hand, are found in between the boundaries of the government and the private sector. Their legal authority originates with a contract and have power of specific activities, such as some sports which require the trainers, managers or athletes to be licensed to participate. Regulatory functions are performed by bodies that operate under private legislation but rely on the market powers and contract for control over an industry, such as stock exchanges. Independent administrative agencies came more so into existence after the Second World War with the expanding of responsibilities undertaken by the government. Boards, commissions and tribunals are the most common and are usually interchangeable. They have been created in every jurisdiction without any overall organizational or conceptual plan and contain some important likenesses and differences.

These independent agencies have at least four common features. Firstly, they have a certain degree of independence from the government department holding the overall responsibility for the policy area they control. The minister can not guide them in their decisions they must make on a matter and the minister can not be held accountable to the legislature for the decisions. Members are appointed by the responsible minister for a short office term and the appointment may or may not be renewed. Civil servants in government departments are subject to the instructions of their superiors and to the policies of the department for which the minister is responsible. The members of an independent agency are not subject to these directions. A second common feature is that those affected by a decision are given the opportunity to participate in the decision making process at a hearing, formal or informal whereby they can submit evidence. Thirdly, independent agencies operate at the point where the program is actually applied to the individual, which may include the denial of a license, or a refusal to rezone. Fourthly, all administrative agencies are specialized and deliver a particular public program or a part of one, and include labor relations boards, agricultural marketing boards, etc. Some work with one statute only while others obtain their jurisdiction from several while courts of law decide cases across a wider range of criminal and civil law.

The differences among the agencies are much more difficult to summarize, but include the following. Decisions made by agencies range from those resembling courts to those made through a political process. Some agencies have a larger policy-making authority which is guided by the public interest, rather than by the impact of the decision on individuals. Some agencies resemble the court structure, holding a hearing and the decision is made by those who conducted the hearing. Some agencies have a very high caseload such as the Unemployment Insurance Commission, while others will concentrate on one or two large rate-making utility decisions. Independent agencies also vary in the place they occupy in the decision-making process and will only make recommendations to those who have the final decision making authority while others make the first and sometimes final decisions.

Independent agencies have certain advantages over government departments as makers of administrative decisions. They are not under the pressure of day-to-day politics and are able to maintain an open process and develop long term and consistent policies. It is also convenient for ministers to discard the political responsibility for individual decisions, especially when the area in question is sensitive. An independent agency may be preferred over a court to resolve disputes since many of the nature of the decisions made by the agencies are inappropriate for the courts, and it may be more desirable that a decision be made by someone other than a judge as experience in areas other than law may be required. The courts tend to be more costly and take longer to finalize decisions.

Administrative remedies deal with the legal remedies available to a person who has been affected by an administrative decision. Administrative agencies have internal means for dealing with grievances,