What Is Administrative Law?
I am quite frequently asked this question.
Administrative law is the body of law that governs administrative agencies.
Administrative agencies are involved in virtually every aspect of our lives. Examples include agencies that regulate food and drug products, securities commissions, local building and development and zoning agencies, liquor control boards, self-governing professional bodies, privacy commissioners, employment insurance, human rights tribunals and workers’ compensation boards.
Administrative agencies relieve the burden on our courts. At least in theory, they may also provide people with expeditious, straightforward and inexpensive ways of resolving disputes.
Administrative agencies are often created by and governed by legislation which sets out their powers.
Administrative law can also extend to voluntary organizations such as sports clubs, societies, and religious groups.
Powers of administrative bodies vary widely. Their powers may be purely administrative, or they may include the ability to make their own rules of procedure, adjudicate disputes, and the ability to make their own policies which may or may not have the force of law.
Although it is often possible to engage in the processes of an administrative agency without the need for a lawyer, this is not always wise. This is because the proceeding may still be quite complex, involve highly specialized policies, or have a high degree of formality or a high impact on those involved.
Also, an administrative body that fails to comply with administrative law is at risk of having its decision overturned, through its internal appeal processes or in court. There are various ways of advancing a court challenge. The time frames involved are narrow. Legal knowledge is essential at this stage. A lawyer who is involved early is generally in a much better position to launch a court challenge, should that become necessary, than one who arrives late to the party.
Administrative law is built largely upon the principles of “procedural fairness” and “natural justice” which originate from the common law. While these principles may appear to be straightforward at first blush, they have embedded within them a number of further concepts. They are largely aimed at encouraging an administrative tribunal to have a fair process. They can extend beyond that though, to the substance of the decisions made. There is recent authority from the B.C. Court of Appeal that a reviewing court will review not only the Board’s reasoning, but also its result.
Many provinces also have administrative law statutes that apply to certain bodies. In British Columbia, that statute is the Administrative Tribunals Act. In Alberta, it is the Administrative Procedures and Jurisdiction Act.
Often, all internal avenues of challenge must first be exhausted before attempting a court challenge. A court challenge is generally either a judicial review or an appeal. Sometimes both may occur. Judicial reviews are different from appeals. Sometimes it will be necessary to take one step but not the other at a particular time.
Both judicial reviews and appeals are highly legalistic proceedings. They involve various complex and somewhat archaic legal concepts which continue to evolve within the law.
In judicial reviews, for example, a long standing theme is the question of the “standard of review.” This essentially refers to the level of scrutiny given by the court. Will the court overturn an administrative tribunal’s decision if the court considers it to not be “correct”? Or, will it strike it down only if it is “patently unreasonable”?
Unfortunately, self represented litigants tend to fare poorly at these stages.
In Canada, while not technically a part of administrative law per se, it is important to remember that the Canadian Charter of Rights and Freedoms may apply to the administrative body involved. Whether to make a Charter argument requires a careful assessment, and requires certain steps to be taken at certain times. The law applicable to the Charter is another large, complex and evolving body of law.
In summary, as American judge Antonin Scalia once said, “Administrative law is not for sissies.”
This is a modified version of an article that appeared in the Kelowna Daily Courier on April 12, 2019, the Kelowna Capital News on April 14, 2019 and other online publications. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or firstname.lastname@example.org.