Idea Transcript
PRINCIPLES OF ADMINISTRATIVE LAW Fifth Edition by
David Phillip Jones, Q.C. B.A.(Hons.) (McGill), B.C.L., M.A. (Oxon.) and
Anne S. de Villars, Q.C. B.Sc. (Southampton), LL.B. (Alberta) both of de Villars Jones Barristers and Solicitors Edmonton
2009
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6 INTRODUCTION: WHAT IS ADMINISTRATIVE LAW?
4. Delegation, Jurisdiction, and the Doctrine of Ultra Vires Judicial review is probably the most important means of controlling illegal governmental actions. To the extent that such actions may constitute wrongs otherwise known to law, the delegate will have to demonstrate some statutory provision authorizing it to take the impugned action. The delegate must be able to demonstrate that its actions fall squarely within the power granted to it by the Federal Parliament or the provinciallegislatures.lfit does not, its actions are ultra vires, that is, beyond the delegate's jurisdiction. Most of administrative law involves the close scrutiny of the jurisdiction or authority of a particular governmental official to do a particular action which affects the rights or interests of another person, and this inevitably involves the application of rules of statutory construction'? to determine precisely what the legislative branch meant to enact. "Jurisdiction" is a difficult term of art in administrative law, and has a number of different meanings. It is frequently very difficult to determine whether the legislation does grant a particular delegate the 'jurisdiction" to do the impugned act, or to do it in some particular way. Lack of jurisdiction makes the act ultra vires, and may make available a legal remedy. Chapter 5 examines both the concept of jurisdiction and the concomitant doctrine of ultra vires.
5. Grounds for Judicial Review The superior courts have the inherent power to review the legality of administrative actions. On the one hand, this power is the natural consequence of the courts' role to interpret the meaning of statutes, including determining the ambit of statutes which delegate powers to administrators. In other words, the courts decide which administrative actions are ultra vires. On the other hand, the superior courts have historically used the prerogative remedies 11 such as certiorari, mandamus, prohibition, quo warranto and habeas corpus to exercise supervisory jurisdiction over inferior courts and other tribunals. As a result, there is considerable judicial review of administrative action in Canada. "Judicial review" is not the same as an appeal. In general, the superior courts do not have the right to substitute their appraisal of the merits for any lawful action taken by an administrator. On the contrary, one of the conse10 See I.A. Corry, "Administrative Law and the Interpretation of Statutes" (1935) 1 U.T.LJ. 286. 11 The remedies are called "prerogative" because they were historically available at the instance of the Crown. Hence, all such applications were made in the name of the Crown, at the instance of the applicant. Therefore, the historical style of the cause is R. v. Commissioner of Police of the Metropolis, ex parte Blackburn, [1968] 2 Q.B. 118 (Eng. CA.). This nomenclature has fallen into disuse in Canada, and the current usage would style the same case as Blackburn v. Commissioner ofPolice ofthe Metropolis. See the historical discussion inBrewerv. Fraser Milner Casgrain LLP, 2008 ABCA 160 (Alta. CA.), at 13-26, additional reasons at 2008 ABCA 285 (Alta. CA.), affirmed (2008), 2008 CarswellAlta 1667 (S.C.c.).