Standards of Judicial Review of Administrative Bodies: The Consideration of Citizen Participation

By Taucar, Christopher Edward | Canadian Public Administration, March 2010 | Go to article overview

Standards of Judicial Review of Administrative Bodies: The Consideration of Citizen Participation


Taucar, Christopher Edward, Canadian Public Administration


Interest in citizen involvement in governmental decision-making has taken a number of forms, from citizen empowerment through choice and the imposing of competitive discipline on government bureaucracy to citizen participation in bureaucratic or political decision-making. While public administration literature tends to focus on either or both forms, greater analysis on the relation between courts and citizen participation is warranted. The question examined is to what extent courts can consider the degree or quality of citizen participation leading up to a decision of an administrative body or tribunal when it reviews that decision. This issue is different from what citizen participation may be required as a matter of natural justice or procedural fairness. Standard of review, whether in relation to appeals from or judicial review of the decisions or actions of administrative bodies, applies to all other questions of administrative law, such as jurisdiction, statutory interpretation, the exercise of discretionary powers, and the substance of the decision itself, including questions of fact. It does not develop other public administration issues, including the precise merits/demerits of citizen participation, methods of structuring that participation with respect to particular administrative bodies, or present empirical evidence as to what sort of court decisions in fact best promote citizen participation. The focus is strictly on what courts may and may not consider in terms of standard of review.

A three-stage analysis is required. First, in order to assess the court's consideration of some matter(s), such as the extent or quality of citizen participation in executive decision-making, it is necessary to determine the legal and legitimate scope of a court's ability to do so. Specifically, this stage examines two competing models of judicial review. The Constitutional/Rule of Law approach is the only acceptable approach.

Second, as the area of substantive judicial review is both complex and massive, I provide some necessary background, as well as the approach currently accepted by the Supreme Court of Canada. This approach, at least on the face of it, if not always in application, in light of judicial acceptance that the court's role is to determine only the legislature's intention, reflects the Constitutional/Rule of Law approach. To the extent of that consistency, it is both legal and legitimate.

The third stage deals specifically with the question of standards of judicial review and citizen participation. In Canada, there is little legitimate or legal room or consistency with the judicial role in judicial review or appeal from administrative action or decisions for courts to take into account the degree or quality of citizen participation to support greater deference towards administrative decision or action. At most, this consideration is marginal and never determinative. In particular, citizen participation can be a consideration relevant to the administrative body's relative expertise when the public perception is either explicitly central to the legislation at issue or is assumed or inferred as such by the court. Even on this point, courts have been inconsistent. On the other hand, the fact that an authority making the decision is democratically elected, such as with municipal councils and school boards, is a consideration in favour of deference. Finally, in reality, there can be some significant indirect or coincidental promotion of citizen participation in public administration as a result of and through standard-of-review analysis yielding judicial deference towards administrative decisions.

Theoretical/foundational arguments

Two broad theoretically opposed positions exist relating to the court's role in reviewing decisions or actions of administrative bodies. (1)

The Constitutional/Rule of Law position is that federal and provincial legislatures are supreme lawmakers within their respective spheres, subject to the Constitution, including federalism and the Charter of Rights and Freedoms. …

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