The End of Administrative Supremacy in Canada

For forty years, from the Supreme Court’s 1979 decision in CUPE to the 2019 one in Vavilov, Canadian administrative law has been characterized by a strong belief in the value of administrative power and a distrust of its supervision by the judiciary. This article charts the development of this approach to administrative law, which it refers to as “administrative supremacy”, and explains its fundamental commitments. It then argues that administrative supremacy is fundamentally misguided, and that its rejection by the Vavilov majority is a significant improvement for Canadian law. Administrative supremacy rests on distinctive and, as the article argues, misconceived views about three key issues in constitutional theory. First, it rejects the separation of powers in favour of an embrace of allegedly expert administrative institutions. Second, it either rejects the Rule of Law or, more recently, redefines it to negate its central commitments to legal certainty. Third, it also redefines democracy as participation in administrative rule-making. On each of these issues, the article contends that the more orthodox understanding of the relevant principles is preferable to that put forward by administrative supremacy. Administrative expertise does not live up to its promise and is not worth the abandonment of the safeguards against abuse of power. And while administrative reasons and participation may enhance the quality of administrative decision-making, it is no substitute for independent judicial review of administrative action. To a large degree, Vavilov repudiates key aspects of administrative supremacy. While the repudiation is incomplete, it is to be warmly welcomed.