Procedural Fairness and Citizen Control: Addressing the Legitimacy Deficit in the Canadian Administrative State by Edward Clark A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Edward Clark 2017 Procedural Fairness and Citizen Control: Addressing the Legitimacy Deficit in the Canadian Administrative State Edward Clark Doctor of Juridical Science Faculty of Law University of Toronto 2017 Abstract The Canadian administrative state has changed significantly since the first half of the twentieth century, but legal scholarship has paid scant attention to how such changes might affect the administrative state’s legitimacy. This thesis argues that the traditional mechanisms for legitimating the increasingly complex and diffuse administrative state are no longer sufficient, particularly in the context of delegated law-making. It uses a republican model of legitimacy to argue for the necessity of citizen control over administrative decision-making. It is incumbent on Canadian administrative law to help provide this citizen control. A concern with legitimacy is consistent with the first principles of administrative law and judicial review, and the doctrine of procedural fairness is well placed to further the participatory vision of legitimacy the thesis employs. Further, the history of procedural fairness shows that legitimacy of decision-making has always been a core concern of the doctrine. However, more recent developments, including a fixation on adjudicative decision-making and the refusal to apply procedural fairness to delegated law-making, mean that Canadian administrative law does not sufficiently facilitate citizen control. This ii is inconsistent with both the internal values of Canadian administrative law and the civic republican vision of legitimacy. There is, however, a separate line of bylaws jurisprudence which more generously extends procedural fairness to delegated law-making. The thesis argues this bylaws jurisprudence is a good starting point to build from. The experience of comparative administrative law makes it even clearer that Canadian administrative law is able to do this legitimating work. The United Kingdom, New Zealand, and Australia all provide broader participation rights in the law-making sphere with weaker tools than are available in Canada. Further, the domestic aboriginal law duty to consult and accommodate make it clear that the Canadian courts are already comfortable imposing broadly applicable procedural rights. Building from this comparative and cognate jurisprudence and the bylaws cases mentioned above, the thesis argues that it is possible with only limited substantive changes to the law to develop the doctrine of procedural fairness to provide broad participatory rights in the delegated law-making sphere, thereby securing the legitimacy of the administrative state. iii Acknowledgements At one level, writing a doctoral thesis is an intensely solitary experience. At another, there is no way I would have completed this endeavour without the support and assistance of many other people. Thanks are due first of all to the members of my supervisory committee, Jennifer Nedelsky and Andrew Green, whose comments (from very different perspectives) made this thesis a better piece of work, and in particular my supervisor, David Dyzenhaus. David’s remarkable responsiveness and insightful engagement with my ideas were crucial in refining what this thesis was about and immeasurably strengthening the robustness of its reasoning. It is through his influence that I discovered I was not, in fact, a lawyer masquerading as an academic but an academic who had spent some time as a lawyer. I am also grateful for the detailed written comments from my external examiner, Alistair Price, and the oral feedback from the rest of my defence committee, notably Richard Stacey. I have also benefitted enormously from discussions at various times with Marcelo Rodriguez Ferrere, Dean Knight, and Claudia Geiringer. The administrative staff at the Faculty of Law were unfailingly helpful and supportive, throughout the doctoral process, and I am grateful in particular for the assistance above and beyond the call of duty I have received from Mariana Mota Prado, Whittney Ambeault, and Tracey Gamiero. Similarly, my doctoral colleagues at the University of Toronto were a great source of support and community over the last seven years, so thanks to all of you, but particularly Stuart, Jacob, Mike, Gail, and Ubaka for being important sounding boards at various times throughout this process. Closer to home, the consistent support from my colleagues at the Victoria University of Wellington Faculty of Law, particularly my “corridor mates” Bevan Marten and Estair Van Wagner, has been greatly appreciated. Finally, I would not have completed my doctorate without the encouragement of my family. My uncles, Robert Clark and the late Lloyd Hoppins, gave me material support iv when it was really needed. My parents, Alan Clark and Linda Tucker, have provided unending assistance, both practical and emotional, while my brother, Ben Clark, was always willing to share his experiences of life as a doctoral student when things got tough. Most importantly, this thesis is for my fiancé, Edward Yong. I would not have started this thesis without you, and I most certainly would not have finished it. v TABLE OF CONTENTS CHAPTER I INTRODUCTION ..........................................................................................................1 CHAPTER II LEGITIMACY AND PARTICIPATION ................................................................... 11 A THE BURDEN OF LEGITIMACY .......................................................................................................... 12 1 The Capacity to Interfere – or Impose Duties ............................................................................ 16 2 Non-Arbitrariness ....................................................................................................................... 19 3 Depth and Breadth of Domination .............................................................................................. 22 4 Summary .................................................................................................................................... 24 B DELEGATED LEGISLATION AND LEGITIMACY .................................................................................. 25 1 Legitimacy Cannot Be Transmitted ............................................................................................ 25 2 The Case for Participation in Delegated Law-Making ............................................................... 31 3 Summary .................................................................................................................................... 34 C THE ADMINISTRATIVE STATE AS A DIALOGIC SPACE....................................................................... 35 D CONCLUSION .................................................................................................................................... 39 CHAPTER III PROCEDURAL FAIRNESS AND LEGITIMACY .................................................. 41 A THE LAW MUST STEP IN .................................................................................................................. 42 B JUDICIAL REVIEW, PROCEDURAL FAIRNESS, AND LEGITIMACY ....................................................... 45 1 The Purpose of Judicial Review ................................................................................................. 46 a Red and green light theory ..................................................................................................... 47 b Administrative law seeks to promote both rights and legitimacy .......................................... 51 c Summary ................................................................................................................................ 56 2 Natural Justice and Legitimacy .................................................................................................. 56 a The history of natural justice ................................................................................................. 57 b The development of modern procedural fairness ................................................................... 62 C CONCLUSION .................................................................................................................................... 69 CHAPTER IV PROCEDURAL FAIRNESS IN CANADA ................................................................ 71 A THE CANADIAN CONTEXT................................................................................................................ 72 B THE PROBLEM OF BATES V LORD HAILSHAM .................................................................................. 77 C THE DEVELOPMENT OF PROCEDURAL FAIRNESS IN CANADA........................................................... 78 D AN INCONSISTENT DOCTRINE .......................................................................................................... 86 1 An Adjudicatory Fixation ........................................................................................................... 87 2 The Problem of Inuit Tapirisat ................................................................................................... 91 a The legislative powers argument ..........................................................................................