Administrative Law in Canada Compared to the United States

In the United States, Congress passes legislation – this is called a statute. An administrative agency, which is created by statute and is a part of the executive branch, can issue administrative regulation. The distinction between the legislative and executive branches means that the difference between statues and regulations are stark in the United States.

In Canada, the Parliament passes legislation and is proclaimed by the Governor General – this is called a statute. Typically, the statute will explicitly provide for further regulations to be issued on the subject matter of the statute in the future. These regulations are not issued by Parliament itself but rather by various committees authorized by the statutes. Nonetheless, these committees typically involve the relevant cabinet minister, which represents the executive branch of government.

In the United States, the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. held that the legality of an administrative agency’s regulation, policy or decision must be upheld unless it clearly conflicts with statute. On the subject matters assigned to administrative agencies by statute, the judicial branch shall exercise deference. However, Chevon has been overturned in Loper Bright Enterprises v. Raimondo, where the Supreme Court, citing the Administrative Procedure Act, held that the judiciary branch is no longer required to exercise deference on matters of statutory interpretation. The Administrative Procedure Act sets forth uniform procedural standards that apply to all federal administrative agencies. Earlier, in West Virginia v. EPA, the Supreme Court created the major questions doctrine – Congress is presumed not to delegate questions of vast economic and political significance to an agency except with clear statutory authorization.

In Canada, there is no Administrative Procedure Act. Judicial review of administrative regulations, policies and decisions follows the leading case Canada (Minister of Citizenship and Immigration) v. Vavilov. In that case, the Supreme Court held that judicial review should apply a “reasonableness” standard (equivalent to the “arbitrary and capricious” standard in the United States), which is deferential. An exception applies where a statute provides (directly or indirectly) that the standard of judicial review will not be deferential but “correctness” (equivalent to the “de novo” standard in the United States). Where a decision of an administrative agency touches on the Constitution, general principles of law and jurisdictional boundaries between administrative agencies, the correctness standard will be applied.

For an example of a judicial challenge to an administrative regulation in the United States, consider the Federal Trade Commission’s ban on employee non-compete agreements, which has been challenged (sometimes successfully) in court. Ontario has a similar rule banning employee non-compete agreements, but the Ontario regulation has not been successfully challenged.

There is also another way by which administrative law is more complex in the United States. Congress has the authority to confirm many members of the President’s cabinet. When the President seeks to remove an appointee, especially when these appointees are quasi-judicial appointees, the President must have good cause (see Humphrey’s Executor v. United States). Even the Attorney General may be restricted from removing an inferior officer except for goods cause (Morrison v. Olson). In Canada, the House of Commons does not have committees that can hold different views from the executive. The executive itself (the Cabinet) is essentially a committee of the ruling party of Parliament.

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