Inside and Outside Canadian Administrative Law

Inside and Outside Canadian Administrative Law: Essays in Honour of David Mullan

GRANT HUSCROFT
MICHAEL TAGGART
Copyright Date: 2006
Pages: 508
https://www.jstor.org/stable/10.3138/j.ctt2ttp8g
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  • Book Info
    Inside and Outside Canadian Administrative Law
    Book Description:

    A fitting tribute to a great scholar,Inside and Outside Canadian Administrative Lawwill prove fascinating to students, teachers, and practitioners of administrative law as well as policy makers and political scientists.

    eISBN: 978-1-4426-7616-9
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-viii)
    David Stratas and Heenan Blaikie

    It is a situation that happens every day in law firms, administrative tribunal offices, and judicial chambers. An administrative law issue has arisen. The issue is difficult. The need for answers is urgent. The time is running out. In this situation, for as long as the administrative law bar in Canada can remember, there is only one question:

    ‘What does Professor Mullan have to say about the issue?’

    Invariably, after just a brief search, we find one of his timely conference papers, one of his incisive articles, or one of his classic texts. Sure enough, David Mullan’s insights are there...

  4. Acknowledgments
    (pp. ix-x)
  5. Contributors
    (pp. xi-2)
  6. David Mullan: In Appreciation
    (pp. 3-8)
    GRANT HUSCROFT and MICHAEL TAGGART

    David Mullan was born in Australia, but from a young age was raised and educated in New Zealand. Like many before and since, he left New Zealand to undertake postgraduate study overseas and subsequently made his academic career in Canada. In the more than thirty-five years David Mullan has spent here, he has become Canada’s leading administrative law scholar and one of the best known and regarded administrative lawyers in the common law world. As is their wont, New Zealanders like to claim Mullan as one of their greatest legal exports.

    David Mullan graduated with an LL.B. and a first...

  7. Academe and the Courts: Professor Mullan’s Contribution
    (pp. 9-29)
    BEVERLEY McLACHLIN

    This celebration of Professor David Mullan’s scholarship situates his work in the course of the powerful currents that have defined Canadian legal academic and judicial cultures. My contribution will focus on the changing roles of academics and judges as, from their different perspectives, they engage in a common project of education and elaboration of the law.

    I begin with a historical discussion of the relationship between judges and academics, tracing its evolution from mutual and sometimes hostile isolation to active interaction in pursuit of different, yet common and overlapping endeavours. Central to this evolution has been the development of a...

  8. Learning Administrative Law from David Mullan: An Appreciation of Evans, Janisch, Mullan, and Risk, Administrative Law: Cases, Text, and Materials
    (pp. 30-49)
    H. WADE MacLAUCHLAN and PHILIP BRYDEN

    By all accounts Professor David Mullan was a remarkable teacher of administrative law. In presenting the Canadian Association of Law Teachers Award for Academic Excellence to David Mullan in 1996, Hudson Janisch (himself an outstanding law teacher) made special mention of Mullan’s dedication to the education of his students and in particular to the teaching of administrative law. This dedication was recognized by Queen’s University, where Professor Mullan spent most of his teaching career, with the presentation of the Queen’s Alumni Award for Excellence in Teaching. So it is, in our view, entirely fitting that a volume recognizing David Mullan’s...

  9. The Uneasy Relationship between Independence and Appointments in Canadian Administrative Law
    (pp. 50-80)
    LORNE SOSSIN

    David Mullan has made a career of asking big questions. I believe there is no greater tribute to his contributions to the field of Canadian administrative law than attempting to investigate some of these questions. In this essay, I take up the challenge to explore the meaning of independence in the context of the administrative justice system.² Specifically, I argue that tribunal independence presupposes some merit constraints on who the government may appoint to adjudicative tribunals (and how those appointments may be made), and that it is striking that the criteria for independence developed at common law do not make...

  10. Where Do Tribunals Fit into the Australian System of Administration and Adjudication?
    (pp. 81-124)
    ROBIN CREYKE

    Fourteen years ago David Mullan was the keynote speaker at the first workshop on tribunals to be held in Australia.¹ In his paper, Mullan not only set out to paint a picture of the special features of Canadian tribu nals, but also explored issues surrounding their independence – independence from the courts, from the executive, and from the legislature – and the extent to which developments in Canada arising from theBill of Rightsand theCharter of Rights and Freedomsprovided constitutional independence for tribunals.² It is a mark of his prescience as an academic, as well as the entrenchment of...

  11. Administrative Law Developments in New Zealand as Seen through Immigration Law
    (pp. 125-161)
    K.J. KEITH

    States have populations. How does a state determine who is to be a member of its population? That question may be divided into two: who may enter and live in the state? And who are its citizens? The citizens are part of the first group since they have rights of entry and residence.¹

    In this tribute to Professor David Mullan, I consider aspects of the ways in which the law of New Zealand over the past forty or so years has answered the first of the two questions. I focus on immigration for two reasons among others: David Mullan’s specific...

  12. Process and Substance in Judicial Review
    (pp. 162-184)
    PAUL CRAIG

    This chapter examines the inter-relationship between process and substance within judicial review. The focus of the analysis is the jurisprudence of the European Community courts, the European Court of Justice (ECJ) and the Court of First Instance (CFI). European Union (EU) law is especially interesting in this respect, because many of the member states that comprise the EU have civil law legal systems, while others are grounded in the common law. EU law provides therefore a ready-made test case for legal comparativism, in the sense that the doctrine developed by the Community courts will draw on civil law and common...

  13. A ‘Mullanian’ Approach to the Doctrine of Legitimate Expectations: Real Questions and Promising Answers
    (pp. 185-210)
    GENEVIÈVE CARTIER

    Among David Mullan’s most influential contributions to administrative law is a prescient article published in 1975, ‘Fairness: The New Natural Justice?’¹ In this famous piece, he criticized the Canadian judiciary for conditioning the recognition of procedural obligations on classifying public functions as quasi-judicial as opposed to administrative. The thrust of Mullan’s argument was that to so condition the application of procedural obligations on the presence of inflexible and indefinable function classification was likely to cause injustice to individuals. He argued for the introduction of British procedural fairness doctrine into Canadian law, which would dispense with the ‘horrors of the classification...

  14. Roadblocks, Restraint, and Remedies: The Idea of Progress in Administrative Law
    (pp. 211-239)
    JANET McLEAN

    In 1985 Professor David Mullan gave a talk to the Law Faculty at Victoria University of Wellington called ‘Heed the Amber Light.’¹ As an undergraduate student at the time I was not entitled to attend. On that occasion, the formalities were observed – introductions were made and my presence explained by my interest in the subject matter. Those were more formal and constrained times. That was not only true of the academy but also of the nature of judicial review itself.

    Professor Mullan’s writings have tracked the large movements and concerns of judicial review over more than thirty-five years. During that...

  15. The Codification of Administrative Law in Quebec
    (pp. 240-258)
    DENIS LEMIEUX

    To better understand the distinctive character of administrative law in Quebec, it is relevant to consider the way in which the state is perceived in Quebec. For most Quebecers, the state is not ‘them,’ it is ‘us,’ as the state is seen as the protector and promoter of the interests of a small francophone minority in North America.

    Quebecers have shown resilience to survive and, more recently, to develop political, economic, social, and cultural values that are a cross between European and North American values. In the eighteenth and nineteenth century, Quebec created unique institutions such as parishes and credit...

  16. Globalization, ‘Local’ Foreign Policy, and Administrative Law
    (pp. 259-295)
    MICHAEL TAGGART

    In many ways local government law is the Cinderella of public law. The age of the city state predated the modern rise of administrative law, and as a consequence the subservience of cities to the states containing them has long since been taken for granted. Paradoxically, perhaps, the age of globalization has generated new interest in the ‘local.’¹ The problems of the world are both too big and too small for states to handle, and the latter are being dispatched increasingly to sub-national levels of government. So it may turn out that the glass slipper of globalization will allow local...

  17. Judicial Review from CUPE to CUPE: Less Is Not Always More
    (pp. 296-326)
    GRANT HUSCROFT

    Respect for the decisions of administrative tribunals is a recurring theme of David Mullan’s work. From the outset he championed the decision of the Supreme Court of Canada in 8,¹ which heralded the adoption of a deferential approach to judicial review. The message fromCUPEwas clear: when it came to judicial review of the decisions of expert administrative tribunals, less was more.

    Curial deference made sense in the context ofCUPE v. New Brunswick– ambiguous legislation, a specialized labour relations tribunal designed to administer it, and a privative clause purporting to immunize that tribunal’s decisions from judicial review – but...

  18. From Despair to Deference: Same Difference?
    (pp. 327-350)
    HUGH CORDER

    I was introduced to this poem¹ in the months between agreeing to write this piece and the actual writing of it. The words used struck me as particularly evocative of the fears and hopes which have surrounded the fate of South African administrative law over the past twenty years. To learn that they had been written by a leading Canadian law professor and dean,² and to hear them so strikingly and unmistakably rendered by one of Canada’s foremost musicians of the second half of the twentieth century³ set the seal on their use to introduce what I have to say...

  19. The Importance of Being Contextual: Deference South of the Border
    (pp. 351-376)
    ALFRED C. AMAN JR.

    In a recent article, David Mullan notes the vigorous debate over judicial deference to agency decisions in Canada, the United States, and else where, citing ‘what appear to be irreconcilable differences in philosophy and approach among the protagonists whether they are judges, academics, agency or tribunal members, or practicing lawyers.’¹ Professor Mullan cautions against any simple and simplistic formula for resolving such differences. Indeed, as he observes, at the basis of these debates are issues for which ‘there may be no absolutes as far as the nature and extent of judicial review is concerned and ... any particular set of...

  20. Principle and Pragmatism: Administrative Agencies’ Jurisdiction over Constitutional Issues
    (pp. 377-420)
    JOHN M. EVANS

    I was delighted to be invited to contribute to this collection of essays to celebrate David Mullan’s outstanding achievements to date as an administrative law scholar and educator, and I know that there will be many more after his formal ‘retirement’ from the groves of academe.¹ Equally important, in my view, has been his commitment to professional service in the broadest sense. For example, he has accepted more invitations to speak to members of administrative tribunals and judges than most of us have ever received,² and much of his writing has a strong pedagogical element from which we have all...

  21. ‘Common Public Law in the Age of Legislation’: David Mullan and the Unwritten Constitution
    (pp. 421-447)
    MARK D. WALTERS

    In this chapter I will examine the account of public law developed in the work of David Mullan, with a view to identifying its underlying constitutional theory and, in particular, its position on the so-called ‘unwritten constitution.’ The struggle to reconcile concepts of written and unwritten law has a long history in the common law tradition. There is, at the level of theory, a deep connection between older assertions that the constitution is not ‘of record’ and later assertions that there is an ‘unwritten Constitution’ behind or ‘back of’ the written constitution. This theoretical continuity should come as no surprise....

  22. David Mullan’s Theory of the Rule of (Common) Law
    (pp. 448-484)
    DAVID DYZENHAUS

    For more than thirty years, David Mullan has been charting the development of Canadian administrative law. He has done this not only by telling us where the administrative state has been, but also, like an ancient explorer venturing into unknown regions, he has provided perceptive charts of where the administrative state might productively go. Both kinds of charts have had immense influence, establishing him as Canada’s foremost administrative lawyer since John Willis, and as one of the leading commentators on administrative law in the common law world. The influence of these charts is owed in part to a remarkable clarity...

  23. The Writings of David Mullan
    (pp. 485-495)