Common Law Principles of the Extraordinary Remedies are Still Relevant in Administrative Law 24 Chitty's Law Journal 1976

24 Chitty's L.J. 95 (1976)
Common Law Principles of the Extraordinary Remedies are Still Relevant in Administrative Law

handle is hein.journals/chittylj24 and id is 97 raw text is: CHITTY'S LAW JOURNAL / VOL. 24 NO. 3. 1976 / 95
NORMAN M. FERA
The Common Law Principles Of The
Extraordinary Remedies Are Still Relevant
In Administrative Law

INTRODUCTION
In recent years there has been a growing
tendency to legislate the mode and scope of
judicial review as it relates to administrative
action. This approach has been seen often as a
way of superseding or reforming the
traditional route which has been through the
extraordinary remedies.' In Canada, however,
such enactments often have had little effect on
the substantive aspects of judicial review. At
the federal level, for example, it is becoming
increasingly clear that neither the Federal
Trial Court nor the Appeal Division wishes to
depart much from the common law principles
of review, and this, despite some provisions in
the Federal Court Act' which could
legitimately support broader judicial control.
At the provincial level, in Ontario for instance,
the availability of the new statutory remedy in
the Judicial Review Procedure Act' is
dependent on the previous availability of one of
the old forms of relief. It is the purpose of this
article to consolidate, in summary form, the
principles and remedies of the traditional
supervisory role of the ordinary courts in the
Canadian context, and to note their ap-
plicability to the statutory review procedures
at the Ontario and federal level in particular.
At the beginning, we shall place the concept of
judicial supervision in an historical and social
perspective.
THE ADMINISTRATIVE PROCESS
In the late twenties Lord Hewart of Bury
struck fear in the hearts of those who had long
cherished the democratic principles stemming
from representative government and the rule
of law. In The New Despotism, the former
Lord Chief Justice wrote:
Norman M. Fera, B.A. (Laur.), Teach. Cert. (Ont.), B.A.
(Hons., Carleton), M.A. (Carleton), Law II, University of Ot-
tawa, Faculty of Law. Mr. Fera has published the following
articles in the administrative law area: Review of ad-
ministrative decisions under the Federal Court Act, (1971)
14 Canadian Pub. Administration, 580-594: The Federal
Court of Canada: A Critical Look at Its Jurisdiction, (1973) 6
Ottawa L. Rev. 99-113; Judicial Review Under Section 18
and 28 of the Federal Court Act. (1975) 21 McGill L. J. 255-
268.

The citizens of a state may indeed believe or boast that, at
a given moment, they enjoy, or at any rate possess, a
system of representative institutions and that the or-
dinary law of the land, interpreted and administered by
the regular Courts, is comprehensive enough and strong
enough for all its proper purposes. But their belief will
stand in need of revision, if, in truth and in fact, an
organized and diligent minority, equipped with convenient
drafts, and employing after a fashion part of the
machinery of representative institutions, is steadily in-
creasing the range and the power of departmental au-
thority and withdrawing its operations more and more
from the jurisdiction of the Courts.'
Focusing primarily on the exercise of
authority by individual department officials
and tribunals, Lord Hewart noted that deci-
sions were being made largely in secret
without regard to procedure or precedent and
without any accompanying justification. It was
Lord Hewart's intention, therefore, to sound a
note of warning about the pretensions and
encroachments of bureaucracy - the new
despotism.'
If there were cause for concern then, the
situation today certainly must be more serious,
if not hopelessly dangerous. Since the twen-
ties, the practice of delegating quasi-judicial
and legislative powers to individuals and
boards has increased enormously - somewhat
in proportion to the broadening concept of the
proper sphere of government and the increas-
ing complexity of modern society. In the words
of Mr. Justice S.H.S. Hughes:
Particularly in the last fifty years, a growing preoccupa-
tion of the State with the regulation of social and commer-
cial activities has led to the proliferation of licencing
bodies, boards and commissions of this and that, all of
them loosely described as administrative tribunals,
wielding in varying degree authority to direct the ac-
tivities of men and women in all walks of life.
Today, it is no longer possible to run a com-
plex government by relying almost exclusively
on the judicial and legislative branches of
government. While the ultimate control is still
to be found in Parliament, in reality much of
the power is in the hands of government
ministers, civil servants, public corporations
and their officers, and most important, boards,
commissions and tribunals.'

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