tribunals, courts, due process explosion, Canada, common law, statutory law, justice system, Model State Administrative Procedure Act
In his 2004 Horace E Read Memorial Lecture, David Mullan assesses the impact of the "due process explosion." To what extent has the evolution of Canadian law (both statutory and common) in the domain of procedural fairness been responsible for the phenomenon of excessive judicialization of the administrative process? Has the increase in the number of decision-makers subject to the obligation of procedural fairness and the growth in the parallels between tribunal and court processes affected adversely the interests of the administrative justice system and the public that it is meant to serve? The author suggests that there is a basis for this concern. He also argues that one potentially profitable way of dealing with it is for tribunals to recognize that they do not always have to function in the same way procedurally for all matters coming before them for resolution. While some tribunals have accepted this and make provision in their rules for variegated procedures depending on context, the author contends that the time may now have come to legislate for this possibility in the manner of the 1981 Model State Administrative Procedure Act.
David Mullan, "Tribunals Imitating Courts - Foolish Flattery or Sound Policy?" (2005) 28:1 Dal LJ 1.