JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN QUEBEC: CRITERIA AND SCOPE

Abstract

The dividing line between review of the legality and review of the political expediency of an administrative decision is often a narrow one. Since the power of the courts relates only to the legality of administrative acts, they must, except for purely legal reasons, avoid obstructing the implementation of governmental policies necessarily consonant with the wishes of the majority of the electorate. We would be well, then, to define precisely the legal sphere within which the courts can control the administration. Administrative acts and decisions in Quebec have often been quashed because of ostensible defects of jurisdiction arising from error of law, violation of the rules of natural justice, non-compliance with other imperative procedural rules of law, or bad faith. In strict jurisdictional theory, errors and misuse of otherwise intra vires power renders acts and decisions merely voidable. But Quebec courts often rationalise mere errors in the exercise of jurisdiction into defects of jurisdiction, rendering these acts and decisions ultra vires, and thus void ab initio. Such broad use of the doctrine of ultra vires obfuscates judicial review of administrative action. To clarify this area of the law, the courts should telescope the doctrine of ultra vires to its strictest sense. In turn, the legislature should enable the courts to lay down a body of legal principles independent of the doctrine, which would govern error of law on the face of the record, the doctrine of natural justice, and abuse of discretionary powers.