Document Type

Working Paper

Publication Date

2021

Subjects

Administrative law, Canada, judicial review, remedies, systemic remedies, statutory appeals

Abstract

Social perceptions of the state and of regulation are badly polarized right now. On one hand, the modern administrative state is under attack. Some modern populists criticize the modern state for being antidemocratic, unaccountable, even tyrannical. Paradoxically, others criticize it for very different reasons: because it is ineffective, or because it binds economies and societies up in “red tape”. On the other hand, the need for a modern, properly-resourced, effective administrative state is also clearer than ever. The financial crisis taught hard lessons about the limits of self-regulation and the need for public sector actors to safeguard the public interest. We have begun to recognize the awesome and alarming size of private, for-profit tech companies. It is also clear that states that were capable of coordinated, science-driven action fared better during the 2020 global pandemic. And meanwhile, injustice and systemic discrimination continue on their intractable ways, as the protests and unrest of the summer of 2020 reminded us yet again. Reconciliation with Indigenous peoples in Canada, also, requires meaningful public action, including at the level of the administrative state.

One thing that is clear is that the administrative state is neither the nightmare that its critics fear, nor the silver bullet that its strongest advocates dream of. In particular, when it comes to administrative law and tribunal action, there is a limit to what tribunals can actually accomplish, and what kinds of remedies they can order. What you want out of administrative law, and what you can get, may be two very different things.

This chapter, which has been revised and updated for the fourth edition of this leading text on Canadian Administrative Law, seeks to provide a broader, plain language overview of administrative law remedies as a whole, including not only judicial review but also tribunal decisions at first instance, internal and external appeals, enforcement mechanisms, and extralegal strategies. Along the way the chapter examines some of the unique characteristics of administrative agencies; the potential of and limits to judicial remedies for systemic problems, such as toxic organizational culture and embedded discrimination; and the ever-shifting border between policy and legal decisions.

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