Administrative Law

January/February 2007

Administrative Law: The Basics

Connie L. Mah

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Special Report on Administrative Law

What is administrative law? Administrative law deals with complaints respecting

government action that adversely affects an individual. Thus, administrative law involves

determining the legality of government actions. There is a two-fold analysis: the legality

of the specific law itself and the legality of particular acts purportedly authorized by the

specific law.

Governments cannot perform any act. Governments act through government

officials who must act within certain limitations. A government’s power to act comes

from legislation or royal prerogative. Thus, government officials must act within the

parameters (or scope) of such legislation or royal prerogative which give their actions

lawful authority. These are lawful actions.

If government officials act outside the scope of their lawful authority and individuals

are affected by these acts, then the principles of administrative law provide individuals

with the ability to seek judicial review of the administrative action and possible remedies

for the wrongful acts.

General Principles of Administrative Law Establishing the Constitutional Validity of Legislation

In the administrative law context, the first step is to determine the legal validity or

authority of the action by the government official. (In this article, administrator, delegate,

and official are all used interchangeably.) This involves looking at the basis of the legal

authority to act, that is, the specific law that gives that administrator the lawful authority

to act.

Reprinted with the permission of LawNow magazine http://www.lawnow.org

http://www.lawnow.org



Constitutional law essentially deals with who has the ability to make laws.

Administrative law deals with the government officials who have been empowered by

these laws to act. Therefore, there is a close relationship between constitutional and

administrative law.

Specifically, if the law that empowered the government official to act was itself

found to be unconstitutional,

and therefore invalid,

then any actions by the

government official under

that law will also be invalid.

Consequently, this may result

in a legal remedy for an

individual adversely affected

by this action.

Determining the Nature and Scope of the Power to ActThe second step in administrative law is to determine the nature and scope of

the powers conferred to the government official by the specific legislation. Through

legislation, the Parliament of Canada and provincial legislatures delegate specific

powers as well as duties to government officials to enable them to act on behalf of

these governments.

Delegation of PowersDelegation of powers from the legislators to administrators is necessary given the

sheer magnitude of the business of government. Due to the volume of decisions

required, it is not possible that all issues be decided by Parliament or the provincial

legislatures in Canada.

Another important reason for the delegation of powers is that laws by their very

nature need to be broad since the wording of laws cannot encompass all specific

and often changing circumstances that occur. Thus, the application of the law may

require some aspect of discretion in order to apply to specific circumstances, and the

laws themselves must set out criteria for the application of such discretion to ensure

fairness and consistency.

Almost all laws passed by Parliament or the provincial legislatures identify specific

powers and duties for various government entities or officials such as a cabinet,

a specific minister or civil servant, or a judge. Given the grave importance of the

delegation of powers, both Parliament and the provincial legislatures have developed

control guidelines for their own delegation of powers to administrators.

Jurisdiction and Ultra ViresWhen there is a complaint regarding an act of a government official, the act is

referred to as the “impugned act”. Where there is a complaint, the official will need

to show that

• some legislation (also called a statutory provision) authorized him or her to do the

act;

Constitutional law essentially deals with who has the ability to make

laws. Administrative law deals with the government officials who

have been empowered by these laws to act. Therefore, there is a close

relationship between constitutional and administrative law.



• he or she acted precisely within the strict powers and duties set out in the statutory

provision (this is called the jurisdiction conferred by the statutory provision).

If the official acted outside of or beyond the parameters set out by the statutory

provision, then the act is

considered ultra vires. This

means the act was outside his

or her jurisdiction or without

lawful authority. This may

result in a remedy available

for an individual adversely affected by the ultra vires act.

Consequently, the cornerstone of administrative law is the importance of the

examination of the specific legislation as it applies to a specific act of a specific

official in order to determine the lawful authority of the impugned act. A close

examination of the specific legislation is essential to the administrative law process

and often involves interpretation of the meaning of the legislation (this is called

statutory interpretation). Statutory interpretation and construction is governed by

legal rules to determine what Parliament or the legislatures meant when enacting

that legislation.

Characterization of Powers and Sub-Delegation of Powers

Characterization of the function of the legislative powers enables the

determination of the scope of these powers and the duties they grant, and the

procedures the delegate is required to follow to lawfully exercise these powers. In

turn, this determines the available remedies in court if the impugned act is found to

be unlawful.

Powers can be characterized as

• legislative;

• judicial (or quasi-judicial); or

• administrative (or executive).

If the delegated power is legislative or judicial in nature, the general rule in

administrative law is that such powers must be exercised by the specific person

identified in the legislation. Such a person (government official) is prohibited from

sub-delegating these powers and duties to another person. By contrast, powers

characterized as administrative can be sub-delegated.

Characterization of Duties and Discretionary PowersAnother important principle of administrative law distinguishes between delegated

powers that are duties that the delegate must perform and delegated powers that are

discretionary in nature. Some powers are broadly set out in the legislation with some

discretionary aspects to enable the delegate to apply the broad principle to specific

circumstances.

The rationale behind such discretionary powers includes the difficulty of providing

a general rule that would apply to all circumstances; the difficulty in anticipating all

Given the grave importance of the delegation of powers, both

Parliament and the provincial legislatures have developed control

guidelines for their own delegation of powers to administrators.



possible factors for all situations; and the difficulty in ascribing weight of all factors

in a broad legislation.

Discretionary powers generally constitute either the delegate being authorized

to exercise discretion on an ad hoc basis or the delegate being authorized to enact

“subordinate legislation” to govern specific types of cases. Examples of subordinate

legislation include regulations, codes, and bylaws. In administrative law, it is

important to determine the scope of discretion of delegates in order to examine the

validity of their acts, especially given that discretionary powers are generally granted

within specific limits.

Forums and Remedies Administrative Boards or Tribunals

Federal and provincial laws have expressly created administrative boards or

tribunals as decision-making bodies for a variety of areas. The underlying rationale is

to make the governmental decision-making process more efficient and accessible to

the general public.

The checks and balances for these decision-making bodies are provided by the

provincial superior courts who oversee them by providing judicial review of the

administrative actions of the boards and tribunals.

The Role of the Superior CourtsThe superior courts have the inherent power of review of administrative actions.

For example, in Alberta, the superior court is the Court of Queen’s Bench. By

applying the rules of

statutory interpretation

and construction, these

courts determine which

impugned acts are ultra vires. These superior courts

have historically also had

supervisory powers over lower courts and tribunals.

Judicial review of an act by an administrator is limited to determining whether

delegates exercised their powers within the strict parameters as set out by the law

that conferred the power and duties to act. These are essentially characterized

as jurisdictional questions and therefore involve determination of whether the

impugned act is ultra vires.Therefore, these courts may intervene if they conclude any of the following

jurisdictional problems were involved in the impugned act:

• substantive ultra vires (the act was not authorized by the legislation);

• the delegate exercised a discretion for an improper purpose, with malice or bad

faith, or with reference to irrelevant considerations;

• the delegate failed to consider relevant matters;

• the delegate made serious procedural errors (that is, breached principles of natural

justice or the duty to be fair); or

If the delegated power is legislative or judicial in nature, the general

rule in administrative law is that such powers must be exercised by the

specific person identified in the legislation.



• the delegate made an error of law.

Administrative RemediesIn reviewing the legality of an impugned act, if a court determines that the act was

ultra vires, it has the following remedies available: declarations; injunctions; damages;

statutory appeals to a court or another administrative body; or prerogative remedies

(certiorari, prohibition, mandamus, habeas corpus and quo warranto).

Privative ClausesThe inherent ability of the superior courts to review the legality of administrative

action can be circumvented by Parliament (or the provincial legislatures) by passing

legislation that includes “privative clauses”. Such clauses essentially state that the

courts do not have the power to judicially review specific actions by delegates.

Specifically, such clauses in legislation may expressly state that the administrator’s

action shall not be reviewed in any court, or alternatively, such clauses could limit the

type of remedies available to the courts under the process of judicial review.

Connie L. Mah is a lawyer practising in Edmonton, Alberta.

Administrative Law

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