Administrative Decision and the Law: The Canadian Implications of the Franks Report

Abstract

T HE purpose of this paper is to consider the implications for Canadians of the recent report of the Franks Committee on administrative justice in England.' This is the second English report of its kind to be made in twenty-five years, the first being the famous Report of the Committee on Ministers' Powers in 1932.' Both committees made exhaustive inquiries into the actual day-to-day working of English administrative justice and in the light of that knowledge made recommendations for its improvement. In the United States, the Report of the Attorney General's Committee on Procedure reviewed in 1941 the federal administrative process as it actually operated; in the light of that report, Congress passed in 1946 the Procedure Act laying down in fairly general terms the minimum standards of procedure to be observed in the administrative exercise of delegated powers of adjudication; and in 1955 a Task Force on Legal Services and Procedure made a year-long study of the entire field of federal administrative law and submitted its conclusions in a 442-page report to the Hoover Commission.3 In Canada there has never been any official inquiry into such questions. For this reason-and we should do well to admit it before we begin trying to learn lessons from the Franks Report-we Canadians do not know much about our own situation. We do know that in our country, as in England and in the United States, there is at the federal level and at the provincial level a heterogeneous collection of bodies other than courts-independent commissions, civil service departments and other statutory authoritiesdeciding disputes between that mighty engine, the state, and the individual citizen or business corporation; but of what most of them in fact do, how they in fact do it, and to what extent they are in fact supervised, checked, or controlled, we have only a hazy and rather general knowledge.4 The *Professor of Law, University of British Columbia. This paper was presented at a joint meeting of the Association of Canadian Teachers and the Canadian Political Science Association at Edmonton, Alberta, on June 6, 1958. It has already appeared in (1958) 24 Canadian Journal of Economics and Political Science 502. 1United Kingdom, Report of the Committee on Tribunals and (1957), Cmd. 218, hereinafter cited as Report. This report has been commented on from the English point of view in an article by W. A. Robson, Administrative Justice and Injustice: A Commentary on the Franks Report, [1958] Public 12; and in an article by E. C. S. Wade, Administration under the Law (1957), 73 Quarterly Review 470. 2(1932) Cmd. 4060. 3See B. Schwartz, Memorandum to the Committee on Tribunals and Enquiries (1957), 35 Canadian Bar Review 743, 747-54. 4All we have is a handful of quite general studies of particular boards. Those calling for special mention are: J. Willis (ed.), Canadian Boards at Work (Toronto 1941);