Discussing the achievements and prospects as regards the codification of administrative law in Canada suggests three conclusions. First, such codification has so far been conducted in a limited way, in terms of both scope and content. Second, contemporary issues, trends, and innovations, by adding complexity and instability to administrative law, make codification more difficult and less likely. Finally, the attractiveness and feasibility of codifying administrative law depend on the ambient legal and political culture. The first and the last of these conclusions closely relate to specifically Canadian factors, such as federalism, the duality in legal culture, and the customary nature of some major public institutions. Under the impact of these factors, administrative law in Canada has grown into a field of knowledge and practice characterised by fragmentation and complexity – or, to put it more positively, by diversity.

Fragmentary approach

 As is readily apparent from a cursory review of legislative sources in Canada, administrative law has not been subject to any codification in the sense of a single, orderly, systematic, and coherent enactment of all essential rules forming an extensive branch of the legal system. There is no equivalent, for administrative law, of the Canadian Criminal Code (1892) or theCivil Code of Québec (1994, replacing the 1866 Code), that would impart to the subject a systemic foundation, an overall structure, a unified terminology, and a set of key institutions. Indeed, very little ‘codification’ in this sense has taken place in public law, apart from a number of imperfect or partial exceptions (eg the Municipal Code and Professional Code in Quebec, the Canada Labour Code or the Human Rights Code in Manitoba or Saskatchewan).

What does exist to a more significant extent is ‘codification’ in another sense: enactments formulating a rule or set of rules previously recognised in the common law. For instance, the remedies through which superior courts may exercise their ‘inherent’ jurisdiction (ie jurisdiction derived from the common law) to review the legality of administrative action have been ‘codified’ in this sense at the federal level and in some of the provinces. Indeed, the very existence of this jurisdiction has been ‘codified’ in Quebec since 1897.

Further, several ordinary statutes dealing with a specific sector of the legal system in fact assume the role of a code within that sector and take on some of the formal characteristics associated with codes. In English-Canadian usage, such statutes are frequently described as ‘complete codes’ and operate with greater autonomy in relation to the common law. The Quebec legal system is not markedly different in this respect; it simply makes use more readily of this type of legislation, which in modern days sits in a comfortable relationship with jus commune embodied in the Civil Code. The existence of statutes of that kind, dealing with public administration, make it possible to discuss codification in Canadian administrative law. Their ‘codal’ quality can be assessed mainly by reference to three features: the scope of the Act, the inclusion of overarching principles, and the degree of exhaustiveness in the treatment of their subject matter.

Four areas

Scattered examples of such ‘codes’ can be found in respect of all four areas of administrative law highlighted in this collection of essays. Respecting administrative organisation, the most significant illustration is the Alberta Public Agencies Governance Act, dealing with all non-departmental entities in the government of that province. Other instances of legislation dealing with the organisation of public administration limit themselves to providing a common regime for a single category of such non-departmental entities, such as federal ‘Crown corporations’ under the Financial Administration Act or Ontario ‘adjudicative tribunals’ under the Adjudicative Tribunals Accountability, Governance and Appointments Act.

In respect of the forms of executive action, as well as administrative procedure, there is much common ground among all 11 Canadian legislative systems. Out of a generic concept of executive decision-making have been carved, through the case law and legislation, two broad types of activity – rulemaking in the form of regulations, as well as investigative work in the form of public inquiries –, leaving individualised decision-making as the residual and canonical form of executive action. Action in the form of contract stands apart, in a sort of twilight zone between private and public law.

 ‘Codification’ governing individualised decision-making by a broad range of administrative authorities has been achieved in only two provinces. Thus, Ontario adopted its Statutory Powers and Procedure Act in 1971, whereas Quebec’s Act respecting administrative justice, strenuously objected to by the Bar, could only come into force in 1996. While significantly different in approach and content, both statutes do operate as ‘codes’ by laying down general principles and by calling for complementary provisions adapted to specific areas of administrative activity.

‘Codification’ has proven much easier in respect of other forms of executive action. Nearly all Canadian legislative systems, following the lead given by the federal Regulations Act of 1950, feature a statute governing the process by which regulations are made, published and put into force: eg Saskatchewan’s Legislation Act, the federal Statutory Instruments Act, or Quebec’s Regulations Act. Similarly, as regards commissions of inquiry, the federal Parliament and provincial legislatures have laid down in comparable terms the powers and duties that are relevant to their purpose of looking into maladministration or any other matter of public concern: eg New Brunswick’s Inquiries Act.

All Canadian legislative systems basically rely, for the ordering of executive action in the form of contract, on the general law of contracts, as well as on the international legal framework of government contracts for building, services, or procurement. However, they vary in terms of the extent of the public-law ordering that they superimpose on these general rules. Thus, the statutory framework for government contracts is minimal in Ontario and rather sketchy at the federal level, while most provinces have adopted extensive legislation on public sector contracts, some of it displaying ‘codal’ qualities: eg Quebec’s Act respecting contracting by public bodies or Nova Scotia’s Public Procurement Act.

Until recently, principles of public action were rarely formulated in Canadian legislation. One rather assumed that they could be extracted from specific, matter-of-fact, detailed, and often technical provisions. Constitutional texts provide little guidance in this matter, beyond their common-law foundations in the rule of law and parliamentary sovereignty. Nowadays, however, a statement of objects, purposes, and general principles has come to appear in many statutes: eg Manitoba’s Mines and Minerals Act. The concept of public governance has further encouraged the move toward explicitly principled legislation. Principles derived from that concept, such as effectiveness, efficiency, quality, and especially accountability, have achieved legislative visibility in a variety of areas: eg British Columbia’s Budget Transparency and Accountability Act or Quebec’s Public Administration Act. The concept of sustainable development, while also achieving visibility in some legislative systems (eg Nova Scotia’s Sustainable Development Goals Act), has had a comparatively much more limited impact on the guidance of executive action.

Beyond pragmatism: cultural factors

The uneven, unsystematic, and limited development of codification in administrative law reflects the pragmatic view Canadians generally take of government and public administration. What matters in these areas is what works, and codification rarely appears necessary to ‘make things work’. This approach generally produces fragmented, disorderly, somewhat labyrinthine outcomes. Complexity of outcomes is further compounded, as in other legal systems, by the increasing diversity among the sources of administrative law, by the appearance of institutional hybrids based on the uneasy coupling of government and management, and by the constant pressure of ‘newness’ on stable and typified legal concepts and instruments. To contemplate a codification of administrative law in such an environment is to face a challenging task.

In the Canadian case, the challenge may be even more daunting because codification has close links with legal and political culture. Since the legal culture of Anglophone Canada belongs to the common-law world, it emphasises legal development through adjudication rather than legislation. Administrative law thus remains largely centered on judicial review. In such a legal universe, codification can only attract occasional interest as a useful housekeeping tool. In the legal culture of Francophone Quebec, by contrast, legislation represents what law is mostly about. Legislation is valued as a statement: from a technical and democratic viewpoint it is apt to provide clear, concise, and principled statements of rules, while from a sociopolitical viewpoint it conveys collective statements about identity, agency, and policy. Codes, as a more elaborate form of legislation, can be expected to assume that expressive function even more significantly.

The dual legal culture of Canada therefore points in different directions as regards codified law. This explains in part the fragmentary and unsystematic recourse to codification in administrative law. Another part of the explanation lies in the political structure of the country, grounded in federalism. Legislative activity in Canada goes on within 11 distinct governmental apparatuses, each of them endowed with full attributes, fostering a specific political culture, and developing institutions of its own in a relatively autonomous way. In this context, the management of diversity favours flexibility, ad hoc arrangements, and continuance of informal practices, rather than too much strictly ‘codified’ rules. Again, pragmatism wins the day in the co-ordination between legislative systems as it does in developments within each system.

Overall, codification thus has only limited appeal as regards administrative law in Canada. This may be due to codification being associated with the concept of unity. Codification is intrinsically centripetal: a code is the center of some legal universe. Canada, however, is a centrifugal country; history and geography have made it so. In the Canadian context, with its unescapable diversity, the concept of unity around a centre is open to many interpretations, qualifications, and perspectives. Large-scale codification is therefore unlikely to find the driving force it requires.

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Posted by Pierre ISSALYS (Faculté de droit, Université Laval, Quebec City)