Hickman, T; (2016) Adjudicating constitutional rights in administrative law. University of Toronto Law Journal , 66 (1) pp. 121-171. 10.3138/utlj.3239.

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Abstract

The article examines how courts apply bills of rights to administrative decisions. It adopts a comparative perspective, analysing the law in the United Kingdom, Canada, and New Zealand. It is found that the courts in each jurisdiction have taken a different approach in relation to the two central issues – namely, (1) whether courts decide for themselves whether rights have been violated or whether they adopt a secondary reviewing role; and (2) whether bills of rights are used as a means of imposing enhanced requirements on decision makers in terms of how they reach their decisions, beyond common law requirements of relevancy and proper purposes. The article argues that the preferred approach is for courts to decide for themselves whether protected rights have been infringed and for them to protect such rights indirectly through the development of requirements applicable to the process of decision making, targeted at ensuring that administrators reach rights-compliant decisions in the first instance. Procedural requirements, if appropriately nuanced and context specific, need not lead to formalism in decision making. The article develops this model, described as the ‘shared responsibility model,’ and contrasts it with the approach taken by the courts in both Canada and the United Kingdom.

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