Discretion in Administrative Law

Osgoode Hall Law Journal
Article 3
Volume 17, Number 1 (April 1979)
Discretion in Administrative Law

J. H. Grey
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Grey, J. H.. "Discretion in Administrative Law." Osgoode Hall Law Journal 17.1 (1979) : 107-132.
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DISCRETION IN ADMINISTRATIVE LAW
By J. H. GREY*
I. INTRODUCTION
If administrative law is seen as the study of the use of power, one of its
most important interests is discretion, since the limits on discretion are at the
same time the limits on the power that anyone can have in our type of democ-
racy. The massive expansion of the powers of the state, and the growth of
immensely powerful committees, commissions and other bodies, against which
may be juxtaposed a new and fervent interest in civil liberties and human
rights, renders a re-examination of discretion and discretionary powers both
essential and inevitable. It is the purpose of this essay to clarify the concept
of discretion, to demonstrate how far the courts have been willing to tolerate
it, and to chart some of the new paths that appear to be opening before those
who advocate wide judicial review.
I. THE CONCEPT OF DISCRETION

Discretion may best be defined as the power to make a decision that
cannot be determined to be right or wrong in any objective way. A university
that interviews prospective students has the power to admit some applicants
and reject some; an executive may choose a secretary out of a field of appli-
cants; the sovereign may pardon some convicts and not others. While one
could disagree with any of these decisions, there is no body or person entitled,
as a general rule, to correct them and declare them wrong.1 Lord Diplock put
it well in a recent case when he said:
The very concept of administrative discretion involves a right to choose between
more than one possible course of action upon which there is room for reasonable
people to hold differing opinions as to which is to be preferred. 2
It would not be incorrect to say that discretion involves the creation of
rights and privileges, as opposed to the determination of who holds those
rights and privileges.
As soon as this definition has been postulated, it becomes tempting to
describe in theoretical terms the relationship between those who have discre-
tion and those who are subject to it. In his famous essay, "Some Fundamental
Legal Conceptions as Applied in Judicial Reasoning," Hohfeld attempted to
o Copyright, 1979, J. H. Grey.

* Assistant Professor, Faculty of Law, McGill University.
1 Although the courts possibly could act in cases of unlawful practices by the uni-
versity or the sovereign. The executive could also be caught by modem antidiscrimina-
tion laws. This essay will attempt to underline exceptions to this categorical statement.
2
Secretary of State for Educ. and Science v. Tameside Metropolitan Borough Coun-
cil, [1977] A.C. 1014 at 1064 (C.A.). See also Dussault, Traitj de droit administratif
canadien et quibicois (Qudbec: Les Presses de l'universit Laval, 1974) at 1398.
OSGOODE HALL LAW JOURNAL [VOL. 17, NO. I
describe analytically the types of legal relations persons may have with each
other.3 To do this he divided relations into pairs of complementary concepts
such as right-duty, power-liability, and no-right-privilege. When X has a right
against Y, Y must have a duty towards X. A similar formula can be used for
each of the pairs of concepts.
Fuller simplified the scheme when he said:
The Hohfeldian analysis discerns four basic legal relations: right-duty, no-right-
privilege, power-liability, and disability-immunity. Of these, however, the second
and fourth are simply the negations of the first and third. Accordingly the basic
distinction on which the whole system is built is that between right-duty and
power-liability; this distinction coincides exactly with that taken by Hart. 4
How does discretion fit into this system? It is clear that as long as there
is a discretion, the relationship fits into the power-liability side of Fuller's
division. But it is also clear that as soon as the limits of discretion are reached,
the holder of a discretion may be bound to a duty; the subject of a liability
may have a right. In short, a discretion may be coupled with a duty.5 The
point is made clear by Colin Tapper in his essay, "Powers and Secondary
Rules of Change," when he says:
Within a group the relationship is best described as one of limiting negatives. The
two terms are exclusive and exhaustive. A must have either a duty or a privilege
as against B. He cannot have neither or both in relation to a given situation. This
does not hold true of the groups themselves. It does not follow that because A
has, say, a duty as against B, that he cannot therefore have a power or a disability
against him. In fact, because the two groups have internally an identical logical
structure, the converse is true. If A has a duty against B, he must also have a
power or a disability against him. This follows because it is implicit in the deci-
sion that A has a duty against R that a legal relationship exists between them. 0
The duty may be to exercise the power, i.e., address one's right to a dis-
cretionary power one possesses, 7 or it may be merely a duty to act honestly
and in good faith.8 In all such cases, the subject of the discretion will have a
correlative "right."
We can therefore summarize the debate by saying that discretion is a
power that is almost always or always is attached to some level of duty. Re-
view of discretion means determining how far the power extends and at what
3 Hohfeld, Some FundamentalLegal Conceptions as Applied in Judicial Reasoning

(1913), 23 Yale LJ. 16.
4Fuller, The Morality of Law (New Haven and London: Yale University Press,
1964) at 134. This passage comes in a footnote, however, and was perhaps not intended
to have the significance it is given here.
5
Itwill be argued later that, at least in public law, it always is.
0Tapper, "Powers and Secondary Rules of Change," in Simpson, ed., Oxford Essays
in Jurisprudence (2d ed. Oxford: Clarendon Press, 1973) at 242. See Dias, Jurisprudence
(3d ed. London: Butterworths, 1970) at 263-68 for examples of powers coupled with
duties.
For purposes of this essay, the third edition of Dias will be used throughout in
preference to the fourth (1976) edition, which has less relevance for us.
7
Tapper, id. at 272.
8 1 have searched in vain for a public law example of bad faith or dishonesty that
the courts decided to tolerate because of "unreviewable discretion."
19791 Discretion
point the "duty" is ignored and the correlative "right" violated. As soon as
that point is reached, the courts can interfere; before that they will abstain
from doing so.
It is useful in dealing with the concept of discretion to consider the
notions of "weak" and "strong" discretion as explained by Dworkin:
I call both of these senses weak to distinguish them from a stronger sense. We use
'discretion' sometimes not merely to say that an official must use judgment in
applying the standards set him by authority, or that no one will review that
exercise of judgment, but to say that on some issue he is simply not bound by
standards set by the authority in question. 9
Dworkin used this distinction in order to show that "strong discretion"
does not exist in law and therefore legal positivism fails as a philosophy. This
is far removed from ordinary issues of discretion in administrative law. Never-
theless, the analysis suggested above is useful in explaining Dworkin's distinc-
tion. The "weaker" the discretion, the closer the point at which a "duty"
exists. Conversely, the "stronger" the discretion, the more distant and more
nebulous the duty.
"Strength" and "weakness" of a discretion are clearly part of a continuum
and not necessarily "either-or" alternatives. Dworkin appears to recognize
this when he says:
The strong sense of discretion is not tantamount to license, and does not exclude
criticism. Almost any situation in which a person acts (including those in which
there is no question of decision under special authority, and so no question of
discretion) makes relevant certain standards of rationality, fairness, and effective-
ness. We criticize each other's acts in terms of these standards, and there is no
reason not to do so when the acts are within the center rather than beyond the
perimeter of the doughnut of special authority.'9
Logically, the "strongest" discretion would mean untrammeled power to
act in any way that the party possessing the power desired. There would be no
duty at all, not even one of good faith. It goes without saying that the
"stronger" the discretion claimed by officials, the greater the controversy
about the possibility of this type of power in our law.
One more point should be noted in connection with the concept of dis-
cretion-it is not limited to public law. Private law is replete with examples
of discretion." Since Hohfeld dealt almost exclusively with private law,12 the
Hohfeldian analysis is, if anything, more apt in private law.'3 In any case,
there is very little difference between private and public law in this field and
one must agree with Dias when he says of powers: "Broadly, they may be
9 Dworkin, "Is Law a System of Rules?" in Summers, ed., Essays in Legal Philoso-
phy (Berkeley and Los Angeles: University of California Press, 1976) 25 at 45. This
article also appeared as The Model of Rules (1967), 35 U. Chi. L. Rev. 33.
Iold. at 46 (Summers), 33 (U. Chi. L. Rev.). This weakens Dworkin's case against
the existence of "strong" discretion. He should perhaps have spoken of the "limits of
strong discretion" and concluded that the "strongest" type of discretion does not exist.
11 Discretionary trusts are perhaps the best example.
12 Tapper, supranote 6, at 247.
13 See, for instance, Harris, Trust, Power and Duty (1971), 87 L.Q. Rev. 31.
OSGOODE HALL LAW JOURNAL [VCOL. 17, NO. I
divided into 'public' and 'private', but for present purposes, nothing turns on
the distinction." 14
While we shall continue to treat discretion as a problem of public law,
we should keep in mind that much of what we conclude will be applicable to
private law fields. 15
Once we have defined and, to some extent, discussed the concept of dis-
cretion, it becomes necessary to consider it together with some of the other
fundamental notions of administrative law and to place review of discretionary
powers in the general context of judicial review.
III. DISCRETION AND JURISDICTION
Discretion and jurisdiction are both words of immense importance in
administrative law and since they are sometimes interchangeable, it is not
difficult to confuse them.
Discretion has been defined above. Jurisdiction is a more general concept
of power to do a particular thing, whether it involves discretion or not. One
could not improve on the formulation given by Dussault: "11 peut, en fait, se
dtfinir comme la capacit6 d'agir dans un domaine precis d'autorit6."' 10
It follows from this that in order to have discretion one must have juris-
diction, but that the converse is not necessarily true. If one exceeds the bounds
of one's discretion, one automatically exceeds one's jurisdiction, but the limits
of jurisdiction can be violated even by those who have no discretion. For
instance, an official who has, in the Hohfeldian sense, a duty only and no
power can act ultra vires by failing to carry out his duty.
Some have viewed discretion as an element tending to extend jurisdic-
tion.-7 However, the better view is that discretion is merely one type of juris-
diction. Courts will always review excesses of jurisdiction,' and thus an act
beyond the limits of discretion will usually be reviewed. A fact at times not
clearly understood is that, since powers and duties are often intertwined, an
official who does possess discretion may act ultra vires for reasons having
nothing to do with the discretion as such. The presence of discretion should
therefore not, in itself, suffice to prove unreviewability on other jurisdictional
grounds.' 9
14 Dias, supranote 6, at 267.

15 There are differences, of course, but these do not seem to lie in the area of basic
concepts.
16 Dussault, supra note 2, at 1266. De Smith's definition in Judicial Review of
Administrative Action (3d ed. London: Stevens & Sons Ltd., 1973) at 96 is more spe-
cific: "Jurisdiction means authority to decide." "Decide" may, however, be too specific
a word, for one may have authority to act without necessarily making decisions.
17 Dussault, supra note 2, at 1266: "Et cette autorit6 comprend parfois une part do
discrdtion lui permettant d'agir avec plus ou moins de libert6, sans risquer d'atre im-
portune par les tribunaux judiciaires."
IsSee, for instance, Anisminic Ltd. v. Foreign Compensation Comm'n, [1969] 2
A.C. 147, [1969] 1 All E.R. 208 (H.L.).
19 This error, it is respectfully submitted, was made by Mr. Justice Greenberg in
Services Juridiques de St-Louis Inc. v. Commission des Services Juridiques, unreported,
Qu6. S.C. no. 05-00-1646-775. (The case is presently under appeal.)
1979] Discretion
IV. DISCRETION AND THE ADJECTIVES "ADMINISTRATIVE" AND

"JUDICIAL"
The words "judicial,.... quasi-judicial" and "administrative" play a great

role in administrative law (and have played a greater one) when they modify
the noun "function." It has always been a serious obstacle to judicial review
when an official has been held by the courts to have performed an adminis-
trative function.
Sometimes administrative functions were held to be almost immune from
review, at least on grounds of natural justice; 20 at other times, they were at
least held immune from certiorari.21 The more modem approach makes ad-
ministrative functions reviewable for gross violations of natural justice on the
theory of the "duty to act fairly." 22 This doctrine is clearly established in
Britain and in other Commonwealth countries. In Canada, its position is more
tenuous,m but, in the opinion of this writer, its existence, if not its scope, is
beyond question following the decision in Hardayal.24 But there is no doubt
that it is more difficult to obtain review if a function is held to be administra-
tive than if it is quasi-judicial or judicial.
How does this affect the use of the adjective "administrative" to describe
discretion? In certain cases, the use is exactly the same. 25 This has its logic,
because functions that are held by the courts to be administrative almost always
have a component of discretion or no debate could have arisen. In the case
of a pure duty without any power, mandamus will lie to compel its perform-
ance. 26 However, it seems certain that the "administrative" or "quasi-judicial"
20See Martineau v. Inmate Disciplinary Bd., Matsqui Inst. (No. 2) (1978), 40

C.C.C. (2d) 325 (F.C.A.), as well as the discussion of "unreviewability" infra p. 120.
See also Calgary Power Ltd. v. Copithorne, [1959] S.C.R. 24, 16 D.L.R. (2d) 241.
21 Mullan, Martineauand Butters v. Matsqui Institution Inmate DisciplinaryBoard:
Its Potential Impact on the Jurisdiction of the Trial Division of the Federal Court
(1978), 24 McGill L.J. 92; Nakkuda Ali v. Jayaratne, [1951] A.C. 66 (H.L. and P.C.);
Martineau v. Matsqui Inst. (No. 2), id.
22 See MMI v. Hardayal,[1978] 1 S.C.R. 470 at 479, 75 D.L.R. (3d) 465 at 471:
It is true that in exercising what, in my view, is an administrative power, the
Minister is required to act fairly and for a proper motive and his failure to do so
might well give rise to a right of the person affected to take proceedings under
s. 18(a) of the FederalCourt Act but, for the reasons which I have outlined, I am
of the opinion that the decision does not fall within those subject to review under
s. 28 of the said Federal Court Act.
See also, for example, R. v. Gaming Bd. for Gr. Brit., [1970] 2 Q.B. 417, [1970] 2 All
E.R. 528 (C.A.).
23 Se Mullan, Fairness:The New Natural Justice? (1975), 75 U. Toronto L.. 281;
and Mullan, supra note 21.
24
MMI v. Hardayal, supra note 22. See also Industrial Coal and Minerals Ltd. v.
Alberta (1977), 5 A.R. 612 (Alta. S.C.) and Re Alta. Union of Provincial Employees
and Alta. ClassificationAppeal Bd. (1977), 81 D.L.R. (3d) 184 (Alta. S.C.). This has
been established conclusively by the decision in Nicholson v. Haldimand-Norfolk Re-
gional Bd. of Comm'rs of Police, unreported, Oct. 3, 1978 (S.C.C.).
25 E.g., Brun, La Mort de la "DiscritionAdministrative" (1974), 52 Can. B. Rev.
426.
26 See Garner, Administrative Law (4th ed. London: Butterworths, 1974) at 183:
"The order is therefore not restricted in operation to orders against inferior tribunals
and government agencies required to act judicially or quasi-judicially."
OSGOODE HALL LAW JOURNAL [VCOL. 17, NO. I
aspect of a dispute refers to the type of function and not to the type or inten-
sity27 of discretion. The case of Mitchell v. The Queen is an excellent illus-
tration.2 3The reason for the Court's refusal to interfere with the Parole Board's
exercise of discretion was that, following McCaud and Howarth, revocation
of parole was considered administrative, and not because the type of discre-
tion used in decisions about parole was essentially different from discretion
exercised by the courts.29 It would therefore seem proper to limit the use of
"administrative" and "quasi-judicial" to functions and to avoid applying it
to discretion.
However, the word is sometimes used with discretion, and it is used to
raise the spectre of unreviewability. While the concept of unreviewable dis-
cretion will be considered at length further on, this is the proper time to con-
sider the notion of "administrative discretion."
A striking example of this usage is found in the recent Federal Court
decision of Bhadauria v. MMI, in the course of which Mr. Justice Walsh
said:
In any event the Court has no jurisdiction to grant the relief sought, which would
require the Court to substitute itself for the immigration or visa officer and mako
a determination on a matter within his administrative discretion, and to issue an
order to the Minister with respect to an administrative matter. The decision to
grant or refuse admission to Canada as a permanent resident in accordance with
the Immigration Act and Immigration Regulations is an administrative decision
and if refused is not subject to judicial review or review by anyone other than the
Minister.80
It is submitted that the honourable justice did not intend to postulate an
unreviewable type of "administrative discretion." Rather, he intended to say,
first, that the function was administrative and, therefore, not subject to the full
application of the principle of audi alteram partem,31 and, second, that where
a discretion exists, the court of review will not substitute its opinion for that
of the official or the court who has the discretion, if no excess of jurisdiction
was committed. The second point almost goes without saying once one has
defined discretion as a power to make decisions for which no "right formula"
exists3 2 This analysis is consistent with the short judgment of Mr. Justice
Abbott in Koula Gana v. MMI, on which the Bhadauriadecision is based. 8
The recent judgment of the Federal Court of Appeal in Martineau v. Matsqui
Institution can also be interpreted in the same way. 4 Briefly, this means that
discretion is not generally reviewed on the merits.
27 Le., "strong" or "weak" discretion.

28
Mitchell v. The Queen, [1976] 2 S.C.R. 570, 61 D.L.R. (3d) 77.
29 Ex Parte McCaud, [1965] 1 C.C.C. 168, 43 C.R. 252 sub nom. Re McCaud
(S.C.C.); Howarth v. National Parole Rd., [1976] 1 S.C.R. 453, 50 D.L.R. (3d) 349,
18 C.C.C. (2d) 385.
30 Bhadauriav. MMI, [1978] 1 F.C. 229 at 231-32 (F.C.T.D.).
81
Martineau v. Matsqui Inst. (No. 2), supra note 20; Mullan, supra note 21;
Nakkuda
2
Ali v. Jayaratne,supra note 21; MMI v. Hardayal, supra note 22.
2 See Secretary of State for Educ. and Science v. Tameside Metropolitan Borough
Council, supra note 2, and accompanying text.
83 Gana v. MMI, [1970] S.C.R. 699.
3
4 Martineau v. Matsqui Inst. (No. 2), supra note 20.
19791 Discretion
If Bhadauria,Koula Gana and Martineau35 were given a broader mean-

ing, they would constitute a threat to the notion of fairness in discretionary
matters.3 6 One could argue on this basis that, however unfair an official ex-
ercising the "administrative" discretion might have been in his procedure,
only political redress is possible.3 7 When viewed in perspective, these cases
say no such thing. Rather, they reiterate that administrative functions may be
exercised properly with less form than judicial ones, and also that courts do
not review proper exercise of discretion on the merits. This does not mean
that where an official acts unfairly (and, therefore, it is submitted, commits a
breach of duty), or otherwise acts outside his jurisdiction, the courts cannot
interfere.
The conclusion we reach is that the term "administrative discretion" is
a confusing and unnecessary addition to the already complex lexicon of
38
"functions" and "discretions" in this area of law.
Another argument against the use of words such as "judicial" to describe
discretion is that discretion can clearly exist in all types of functions. Obviously,
administrative functions can be discretionary and that is what the Bhadauria
and the Ganacases are about.39 But, equally clearly, judicial functions may be
discretionary. For instance, the leading case, Boulis v. MMI, concerns the Im-
migration Appeal Board, which is a court of record. 40 There are different rules
dealing with the procedure to be followed in these cases, but as far as the
discretion is concerned, the principles of review are the same. The rule that
no review on the merits is possible and that the courts will not substitute their
opinions for those of competent authorities is well-established, both where the
discretionary function is judicial and where it is administrative. Therefore, no
possible gain can be found in classifying "discretions" in this way.
V. DISCRETION AND THE ADJECTIVE "MINISTERIAL"
The adjective "ministerial" has been used both to describe powers where
41
there is virtually no discretion and to describe powers that are very wide.
The very fact that such different meanings have been given to this word
should put us on guard and, indeed, no advantageous use can be found for it.
Like "administrative" and "judicial," this is a term that leads to confusion
and should be eschewed.
35
Bhadauria v. MMI, supra note 30; Gana v. MMI, supra note 33; Martineau v.
Matsqui Inst. (No. 2), id.
36
See MMI v. Hardayal,supra note 22.
87 See Martineauv. Matsqui Inst. (No. 2), supra note 20; and Mullan, supra note 21.
88
De Smith, supra note 16, at 64, warns against any use of the adjective "quasi-
judicial." With respect to discretion, such a warning should be doubly potent and apply
to all such terms.
3
9 Bhadauriav. MMI, supra note 30; Gana v. MMI, supra note 33.
40
Boulis v. MMI, [1974] S.C.R. 875, 26 D.L.R. (3d) 216. It is interesting to remem-
ber that the very issuance of prerogative writs and injunctions is discretionary (e.g.,
R. v. Aston Univ. Senate, [1969] 2 Q.B. 538, [1969] 2 All E.R. 964).
41
See de Smith, supra note 16, at 59-60; and Dias, supra note 6, at 267-68. The
word "ministerial" appears with no explanation in Re Multi-Malls Inc. and Min. of
Transp. and Commun. (1976), 14 O.R. (2d) 49 (C.A.) at 60. It is also used with the
noun "function" in Services Juridiquesde St-Louis v. Commission des Services Jurdiques,
supra note 19, and here it seems to be used as a synonym for "duty."
VI. GENERAL PRINCIPLES OF REVIEW OF DISCRETION

For all the confusion surrounding the concept of discretion, the general
principles of review of discretion are simple and accepted by interventionists
and conservatives alike. A recent Supreme Court decision sums them up:
In my opinion, however, such an appeal can succeed only if it be shown that the
Board (a) has refused to exercise its jurisdiction or (b) failed to exercise the dis-
cretion given under s. 15 in accordance with well established legal principles. As
to those principles, Lord Macmillan speaking for the Judicial Committee said in
D. R. Fraser and Co. Ltd. v. Minister of National Revenue at page 36:
The criteria by which the exercise of a statutory discretion must be judged
have been defined in many authoritative cases, and it is well settled that if
the discretion has been exercised bona fide, uninfluenced by irrelevant con-
siderations and not arbitrarily or illegally, no court is entitled to interfere even
42
if the court, had the discretion been theirs, might have exercised it otherwise.
If the Canadian Supreme Court is considered a very conservative body,
it is for once in agreement with Lord Denning, whose words, although differ-
ently slanted, mean exactly the same thing:
Undoubtedly those statutory provisions give the Minister a discretion as to the
issue and revocation of licences. But it is a discretion which must be exercised in
accordance with the law, taking all relevant considerations into account,
43 omitting
irrelevant ones, and not being influenced by any ulterior motives.
It should be noted that neither of these cases can be taken to mean that
there is in all cases a duty to exercise a discretion. There are many powers
that may, but need not, be exercised. 44 Even where there is no duty to exer-
cise the discretion, however, the restriction on the use or nonuse of discre-
tionary powers, as explained in Boulis and Congreve, applies. 45 These can be
summarized as a duty to act:
(a) in good faith,
(b) uninfluenced by irrelevant considerations or motives,
(c) reasonably, and
(d) within the statutory bounds of the discretion.
The last duty is so obvious that it hardly need be specified.40 As long as
these duties are respected, the
47
courts will not interfere, because that would
mean usurping the discretion.
If the duties are breached, courts will often correct the situation. What
do these duties mean?
(a) The duty to act in good faith
It has become an accepted principle that bad faith vitiates the use of a
discretion and that bad faith has a broader meaning in this field than in many
others. Wade says:
42
Boulis v. MMI, supra note 40, at 877 (S.C.R.), 217 (D.L.R.) per Abbott J.
43 Congreve v. Home Office, [1976] 1 Q.B. 629 at 649, [1976] 1 All E.R. 697 at 708.
44
Dias, supra note 6, at 267 distinguishes between powers which must be exercised
and those which need not, and calls the former "ministerial."
45
Boulis v. MMI, supra note 40; and Congreve v. Home Office, supra note 43.
46 See, for instance, Calgary Power Ltd. v. Copithorne, supra note 20.
47
See Bhadauriav. MMI, supra note 30.
19793 Discretion
The judgments discussed in the last few pages are freely embellished with refer-
ences to good and bad faith. These add very little to the true sense, and are hardly
ever used to mean more than that some action is found to have a lawful or un-
lawful purpose. It is extremely rare for public authorities to be found guilty of
intentional dishonesty: normally they are found to have erred, if at all, by
ignorance or misunderstanding. Yet the courts constantly accuse them of bad faith
merely because they have acted unreasonably or on improper grounds. Again and
again it is laid down that powers must be exercised reasonably and in good faith.
But in this context 'in good faith' means merely 'for legitimate reasons'. Contrary
to the natural sense of the words, they impute no moral obliquity. 48
Rand J. defined "good faith" in Roncarelli v. Duplessis:
"Good faith" in this context, applicable both to the respondent and the general
manager, means carrying out the statute according to its intent and for its purpose;
it means good faith in acting with a rational appreciation of that intent and pur-
pose and not with an improper intent and for an alien purpose; it does not mean
for the purposes of punishing a person for exercising an unchallengeable right; it
does not mean arbitrarily
49
and illegally attempting to divest a citizen of an incident
of his civil status.
There exist, of course, cases of the "moral" type of bad faith, 0 and, in
other cases, it is difficult to determine whether "moral" bad faith is involved.51
Nevertheless, it is clear that the notion of bad faith is being used to describe
various forms of behaviour, ranging from clear moral turpitude to errors not
intrinsically different from those influenced by irrelevant considerations or un-
reasonable acts.
It would probably serve clarity best if the expression "bad faith" were
limited to situations where moral turpitude was present 52 and if "irrelevant
motives" and "unreasonableness" were kept separate from it.53 At present, it
is difficult to be certain what type of error of discretion is invoked and discus-
sion can become very muddled. For instance, it is difficult to see the place of
"good faith" in relation to discretion in Wade's otherwise excellent analysis of
55
the subject.5 4 A narrower definition would bring everything into focus.
(b) The duty not to be influenced by irrelevantconsiderationsor motives
This duty appears to cover two types of problems. First, it forbids the
nonexercise of discretion for ulterior motives, such as personal gain, dislike,
ethnic feeling and so on. Second, and more significantly, it forbids the use
48
Wade, Administrative Law (4th ed. Oxford: Clarendon Press, 1977) at 372.
49
Roncarelli v. Duplessis, [1959] S.C.R. 121 at 143, 16 D.L.R. (2d) 689 at 707.
5
0A good example is Gershman v. Manitoba Vegetable Producers, Marketing Bd.
(1976), 65 D.L.R. (3d) 181, [1976] 2 W.W.R. 432 (Man. Q.B.); (1977), 69 D.L.R.
(3d) 114 (Man. C.A.).
51 E.g., Roncarelli v. Duplessis, supra note 49; Congreve v. Home Office, supra
note 43.
52 Gershman v. Manitoba Vegetable Producers'Marketing Bd., supra note 50.
53 It goes without saying that hermetic separation is impossible and that all three
will often be present. Indeed, Rand J.'s definition of good faith (Roncarelli v. Duplessis,
supra note 49) is a perfect illustration of this.
5
4 Wade, supra note 40, particularly at 372-75, but de Smith, supra note 16, at 304
makes a clear distinction between the concepts.
55 This is not to quarrel in any way with the result or reasoning of Roncarelli v.
Duplessis, supra note 49, but only to quibble about a definition.
of discretion for purposes other than those intended by the instrument that
created the discretion. Although the two cases are frequently difficult to dis-
tinguish, 56 it is possible to point to examples that are more one than the other.
The celebrated case of Smith and Rhuland Ltd. v. The Queen is an ex-
ample of the first type of error, caused by consideration of an individual's
political views. 57 To an attempt to refuse certification of a union because its
secretary-treasurer was a Communist, Mr. Justice Rand answered as follows:
I am unable to agree, then, that the Board has been empowered to act upon the
view that official association with an individual holding political views considered
to be dangerous by the Board proscribes a labour organization. Regardless of the
strength and character of the influence of such a person, there must be some
evidence that, with the acquiescence of the members, it has been directed to ends
destructive of the legitimate purposes of the union, before that association can
justify the exclusion of employees from the rights and privileges of a statute de-
signed primarily for their benefit. 58
Examples of the second type of misuse of discretion abound, particularly
in recent years. Perhaps the classic statement can be found in Lord Reid's
judgment in Padfield v. Minister of Agriculture, Fisheriesand Food:
Parliament must have conferred the discretion with the intention that it should be
used to promote the policy and objects of the Act; the policy and objects of the
Act must be determined by construing the Act as a whole and construction is
always a matter of law for the court. In a matter of this kind it is not possible
to draw a hard and fast line, but if the Minister, by reason of his having miscon-
strued the Act or for any other reason, so uses his discretion as to thwart or run
counter to the policy and objects of the Act, then our law would be very defective
if persons aggrieved were not entitled to the protection of the court.5 9
This type of thinking was applied in a ringing manner in Congreve v.
Home Office, where Lord Denning emphasized that discretionary powers to
cancel a licence could not be used as a way of enforcing the purchase of a
new, higher-priced licence, and he made clear the importance of this principle
for human rights in a democratic society.60
An important recent Canadian application of this type of analysis can
be found in Re Multi-Malls Inc. and Minister of Transportation, where
Lacourci~re J.A. said:
I am of opinion that the Minister of Transportation and Communications allowed
himself to be influenced by extraneous, irrelevant and collateral considerations
which should not have influenced him in the exercise of his discretion to refuse
the entrance permit. It seems clear that the purpose of the Act in general is not
to ensure proper land use planning but generally to control traffic. 61
This is clearly one of the main battlegrounds in administrative law and
56 Was Roncarelli v. Duplessis, id., a case of personal vindictiveness or was it a case

of tragic (in the classical sense) disagreement about the nature and purpose of discretion
and government between Duplessis and the courts?
57
Smith and Rhuland Ltd. v. The Queen, [1953] 2 S.C.R. 95.
5
8 Id. at 100.
59 Padfleld v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 at 1030,
[1968] 1 All E.R. 694 at 699 (H.L.).
60 Congreve v. Home Office, supra note 43.
61 Re Multi-Malls, supra note 41, at 62-63.
1979] Discretion
an area of some uncertainty. An "interventionist," such as Lord Denning, has

great scope for judicial review, for the court is the ultimate arbiter of the
meaning and purpose of a statute as well as of the relevance and irrelevance
of various considerations. On the other hand, a "conservative" could, without
repudiating any of the basic principles of review, rely on the more restrictive
views of Lord Greene M.R. in Associated ProvincialPicture Houses Ltd. v.
Wednesbury Corp. and on the Supreme Court of Canada in Boulis v. MMI to
argue that inconsistency with a statute or its purposes should be invoked only
in flagrant cases, and never when an official has acted in a remotely reason-
able manner.6
In England, the interventionist theory clearly prevails. In Canada, de-
spite the excellent example of Multi-Malls, some doubt remains. While Boulis
v. MMI could clearly be used by either camp, it is distinctly conservative in
flavour. Moreover, recent judgments of the Federal Court, while not directly
on point, also showed a marked tendency towards strict construction and
narrow review. 3 However, given the fact that Canadian courts have in the
past pioneered in establishing the principles of review,6 4 and that the inter-
ventionists have already won battles here, 65 it is most likely that our law is
in substance the same as England's, and that our courts possess vast powers
of review of discretion by proper construction of statutory purposes.
An interesting side issue is found in the question of acceptance or refusal
of evidence or weight given to evidence. When do such matters amount to
"irrelevant considerations"? It is clear that in certain cases they do, 66 but it is
also clear that it is harder to win on evidentiary issues than where a power is
used for the wrong purpose. Weight of evidence, in particular, is a very diffi-
cult ground for upsetting the otherwise legitimate exercise of a discretion. In
Re Township of Innisfil and City of Barrie, Robins I. said:
Once it is recognized that the Board is entitled to accept the policy statement, it
follows, in my view, that it is for the Board to determine the weight to be given
to it. It is not for the Court to enter the arena in such proceedings and judge the
effect to be given material before the body charged with the decision. If a matter
may properly be considered it is, I think, "scarcely possible for a court ever to say
that too much weight was given to it or that it ought not to have been allowed
to outweigh other considerations", to adopt the words of Windeyer, J.in R. v.
Anderson Exp. Ipec-Air Pty. Ltd. (1965), 113 C.L.R. 177 at p. 205.67
While it is impossible to formulate a general rule, it is therefore possible
6
2 Associated Provincial Picture Houses, Ltd. v. Wednesbury Corp., [1948] 1 K.B.
223, [1947] 2 All E.R. 680. This case was at least partially discounted, however, in
Re Multi-Malls, id. See also Boulis v. MMI, supra note 40.
63
See Martineauv. Matsqui Inst. (No. 2), supra note 20; Kurek v. Solicitor General,
unreported, Federal Court (Tr. Div.) T-1324-75; Inuit Tapirasat of Canada v. Lgger
(1978),
64
87 D.L.R. (3d) 26 (F.C.T.D.); Bhadauriav. MMI, supra note 30.
Roncarelli v. Duplesis, supra note 49.
65 Re Multi-Malls, supra note 46; Re Doctors' Hosp. and Min. of Health (1976),
68 D.L.R. (3d) 220 (Ont. H.C.).
66 See de Smith, supra note 17, at 301-03; Re Bernstein and College of Physicians
and Surgeons (1977), 15 O.R. (2d) 447 (H.C.).
67 Re Township of Innisfil and City of Barrie (1978), 17 O.R. (2d) 277 at 287, 80
D.L.R. (3d) 85 at 95-96, 3 M.P.L.R. 47 at 62 (Div. Ct.).
OSGOODE HALL LAW JOURNAL [VOL. 17, NO. 1
to state that in the evidentiary area the "conservative" view appears

08
stronger
than it does where a discretionary act is challenged on the merits.
(c) The duty to act reasonably
There have been many expressions which have here been subsumed under
the word "reasonably." In Boulis v. MMI, the Supreme Court sanctioned the
use of "arbitrarily."0' 9 De Smith uses "manifest unreasonableness." 70 It is
suggested that parallels can be drawn with private law, and that conduct so
arbitrary, capricious, or blatantly erroneous that no reasonable, properly
directed person could have engaged in it, will be grounds for review. As Lord
Diplock said:
My Lords, in public law "unreasonable" as descriptive of the way in which a
public authority has purported to exercise a discretion vested in it by statute has
become a term of legal art. To fall within this expression it must be conduct which
no sensible authority acting with due appreciation of its responsibilities would have
decided to adopt.7 '
In analysing Dworkin's categories of discretion, we noted that there is
no single "strong" and "weak" discretion, but rather a continuum. 72 Nowhere
is this more evident than here, for clearly what is reasonable in one place will
be unacceptable in another. 73 In a statement applicable to other areas of dis-
cretion, but particularly apt here, Lord Wilberforce said: "But there is no
universal rule as to the principles on which the exercise of a discretion may
be reviewed; each statute or type of statute must be individually looked at."7 4
One of the criteria the courts may use is whether reasonableness is pre-
scribed by statute, and if so, how the statute is phrased and what are its pur-
poses. 75 But, it is submitted, the presence of a duty to act reasonably need not
be specified; it is always presumed.
Without doubt, the most significant development in the use of reason-
ableness as a ground for review is the case of Secretary of State for Education
v. Tameside Metropolitan Borough Council.78 In that case, the Secretary of
State was given a statutory power to overrule an elected local council if he
was "satisfied ... that any local education authority . . . have acted or are
proposing to act unreasonably." A Secretary of State, who was a member of
the Labour Party, used this section to block the implementation of the poli-
1S As with many of our distinctions, however, the boundaries are often blurred
between evidentiary and other issues.
69 Boulis v. MMI, supra note 40.
70 De Smith, supra note 16, at 304.
7
1 Secretary of State for Educ. and Science v. Tameside Metropolitan Borough
Council. supra note 2, at 1064.
72
Dworkin, supra note 9.
73 Id. See also note 10, supra, and accompanying text.
Council, supra note 2, at 1047.
75 Special wartime laws, for instance, will rarely be reviewed; see note 129, infra,
and accompanying text.
Council,supra note 2.
1979] Discretion
cies of a Conservative local authority. There was then a conflict of discre-

tion-the discretion of the Secretary of State in deciding when "he is satisfied"
and the discretion of the local Council to make policy, which should be over-
turned only for unreasonableness.7 7 There was an explicit finding of good
faith on the Minister's part.78 Furthermore, there was no conclusive evidence
that the Minister misdirected himself or considered irrelevant matters. 79 Never-
theless, the Minister's decision was reviewed and quashed.
The explanation must be that the Secretary of State made a decision so
manifestly unreasonable about the reasonableness of the local Council's poli-
cies that the Court was entitled to quash it even without an explicit error or
misdirection on the Minister's part. If so, this ground can be used to review
blatant errors of law or fact even when they do not go to jurisdiction. All
that is necessary is that the discretionary decision be such that no reasonable
8°
person could make it.
Is the "duty to be fair" 81 always part of the duty to act reasonably?
Generally, the duty to be fair has been viewed as a procedural one,m and it
is dangerous to make hard and fast rules about the procedure for the exercise
of discretionary powers. Nevertheless, de Smith suggests that "fairness" has a
substantive side and applies in some form to most questions of discretion.a8
This conclusion is strengthened by a passage in Re Multi-Malls" where fair-
ness as expounded in R. v. Liverpool Corp.85 is accepted as a basic principle
in what is, in essence, a case on discretion. It is thus very likely that the doc-
trine of "fairness" will apply, to some extent, to all use of discretion, although
the extent will vary greatly from discretion to discretion.
(d) The duty not to exceed the statutory bounds of the discretion
It is patently obvious that, if an administrative body that is given the
discretionary power to fix railway rates purports to fix import quotas, its deci-
sion is null and void on the ultra vires principle. Since statutory limits of a
discretion will often be narrowly construed, especially where private rights
might be affected, 86 this principle could prove practical in preventing abuse
of power. Even in less blatant cases, discretionary powers might be reviewed
if they are not exercised in strict compliance with the statutes or regulations
creating them. An obvious example of this is the illegal subdelegation of dis-
77 It is likely that, with the growth of government, coupled with the increase in
regulation and the number of regulatory agencies, such conflict will become very common.
78
Secretary of State for Educ. and Science v. Tameside Metropolitan Borough
Council, supra note 2, at 1065 per Lord Diplock.
79 Id. at 1071 per Lord Salmon.
80 Id. at 1064; see also note 71, supra, and accompanying text.
81 See MMI v. Hardayal,supra note 22.

82
See Mullan, supra note 23.
8
3 De Smith, supra note 16, at 303.
84 Re Multi-Malls, supra note 41, at 65.
85 R. v. Liverpool Corp., [1972] 2 Q.B. 299; sub nom. Re Liverpool Taxi Owners'
Ass'n, [1972] 2 All E.R. 589 (C.A.).
86
See Manitoba Gov't Employees Ass'n v. Manitoba, [1978] 1 S.C.R. 1123, 79
D.L.R. (3d) 1.
cretionary powers. Generally, powers must be exercised by those entrusted

with them by law and not by others.8 7
It is much more difficult to decide when the exercise of power is tainted,
if exercised under compulsion or under the influence of another. The case of
Township of Innisfil and City of Barrie illustrates that considerable reliance
may be placed on government policy. 8s On the other hand, it would be logical
to assume that there is a point at which obedience becomes equivalent to
subdelegation and therefore illegal.8 9
Exercise of a discretionary power so as to violate any law or make it
inoperative will almost always be viewed as illegal.90 This is a necessary con-
sequence of the rule of law, for otherwise officials exercising discretion would
be exempt from it.
VII. THE PROBLEM OF UNREVIEWABLE DISCRETION
In the preceding section, we considered the principles of review of dis-
cretion applicable to most questions, but it is still intriguing to ask if there
may not exist certain powers not subject to any form of review whatsoever.
In our analytical framework, this would mean a power with no duties attached
and therefore no rights arising from either its exercise or nonexercise.
In Roncarelli v. Duplessis, Rand J. made a classic, oft-repeated state-
ment which might have put an end to the debate:
In public regulation of this sort there is no such thing as absolute and untram-
melled "discretion", that is that action can be taken on any ground or for any
reason that can be suggested to the mind of the administrator; no legislative Act
can, without express language, be taken to contemplate an unlimited arbitrary
power exercisable for any purpose, however capricious or irrelevant, regardless
of the nature or purpose of the statute. Fraud and corruption in the Commission
may not be mentioned in such statutes but they are always implied as exceptions.
"Discretion" necessarily implies good faith in discharging public duty; there is always
a perspective within which a statute is intended to operate; and any clear departure
from its lines or objects is just as objectionable as fraud or corruption.91
However, dicta about unreviewability also abound. We could cite, for
instance, the Federal Court of Appeal:
There are, however, ministers and officials who have purely administrative powers
that are not subject to judicial review. Such persons must also exercise their
powers on a fair and just basis because they are acting on behalf of the public;
but they are answerable, not to the Courts, but to their superiors or to the appro-
priate Legislature.9 2
87
Ramawad v. MMI, [1978] 2 S.C.R. 375. There are exceptions to this principle,
but they are outside the scope of this essay.
88
Re Township of Innisil and City of Barrie, supra note 67.
89 E.g., the illegality of Mr. Archambault's act in Roncarelli v. Duplessis, supra
note 49.
90 Manitoba Gov't Employees Ass'n v. Manitoba, supra note 86; R. v. Commissioner
of Police, [1968] 2 Q.B. 118, sub nom. R. v. Metro Police Comm'r, (1968] 1 All E.R.
763; Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373 at 427-35, 68 D.L.R. (3d) 452
at 499-506. This does not mean, however, that there is never discretion not to apply the
law in a particular case. Such a discretion is essential if our laws are to be applied
humanely. See R. v. Catagas, [1978] 1 W.W.R. 282 at 287 (Man. C.A.).
91
Roncarelli v. Duplessis, supra note 49, at 140 (S.C.R.), 705 (D.L.R.).
9
2 Martineau v. Matsqui Inst. (No. 2), supra note 20, at 328.
1979] Discretion
It is true that, as with Bhadauriav. MMI, such dicta can be explained

and integrated into a scheme which stops short of total unreviewability. 93
Nevertheless, the dispute has remained.
It is interesting to note that de Smith queries the existence of unreview-
able powers and then gives a very subtle and cautious answer. 94 Wade, on the
other hand, spends less time on the point, but provides, it is suggested, the
better answer:
Although the Crown's lawyers have argued in numerous cases that unrestricted
permissive language confers unfettered discretion, the truth is that, in a system
based on the rule of law, unfettered governmental discretion is a contradiction in
terms. The real question is whether the discretion is wide or narrow, and where
the legal line is to be drawn. For this purpose everything depends upon the true
intent and meaning of the empowering Act. 9 5
In order to see whether any powers under our law are totally outside the
control of the courts,9 6 we shall look at several types of powers that have
been placed in such a category to see how far their immunity extends.
A. Administrative functions subject to political control only
While there have long been restrictions on the review of administrative
functions, discretionary or not,97 courts have rarely postulated complete un-
reviewability, save on the merits of a discretionary decision. 8 Nevertheless,
several recent dicta by the Federal Court might suggest such a doctrine.
Chronologically, the first was Kurek v. Solicitor General of Canada.99
This case dealt with the Crown prerogative of using section 21 of the
Immigration Appeal Board Act,'0 0 but its ramifications became far broader
when Addy J. said:
In any event, if the decision was a judicial or quasi judicial one it is reviewable
only by the Court of Appeal under section 28 and not by the Trial Division. If it
was a purely administrative decision, then, since it was rendered by the minister
in the exercise of the function with which he was charged by Parliament under
the Act, he is answerable first of all to Cabinet and finally to Parliament for any
such decision and not to the Courts.101 [Emphasis added]
In Inuit Tapirasatof Canada v. LUger, Marceau J. included a similar
statement:
93
Bhadauriav. MMI, supra note 30.
94
De Smith, supra note 16, at 253-62.
95
Wade, supra note 48, at 340.
96
We should keep in mind Lord Denning's view that the courts always retain a
power of last resort. For instance, in A.G. v. Chaudry, [1971] 1 W.L.R. 1614, [1971]
3 All E.R. 938, Lord Denning said at 1624 (W.L.R.), 947 (All E.R.): "The High Court
has jurisdiction to ensure obedience to the law whenever it is just and convenient so
to do."
97See Martineau v. Matsqui Inst. (No. 2), supra note 20; Mullan, supra note 21;
and Nakkuda Ali v. Jayaratne,supra note 21.
98
See Bhadauriav. MMI, supra note 30, and accompanying text.
99
Kurek v. Solicitor General,supra note 63.
100 R.S.C. 1970, c. 1-3.
01
1 Kurek v. Solicitor General, supra note 63.
In my view, in making decisions under 64(1), the Governor-General in Council

makes them on the basis of political accountability and not on a judicial or quasi-
judicial basis. The scheme of the statutes pertaining to telecommunications is that
decisions involving broad economic questions are entrusted to the CRTC which
is under a strict duty to hold a hearing and to afford the parties a full opportunity
to be heard. The Commission may itself at any time review, rescind, change, alter
or vary any of its orders or decisions (section 63 of the National Transportation
Act), and these orders or decisions, moreover, are subject to appeal to, and review
by the Courts (section 64(2) to (7) of the Act). The power to "vary or rescind"
entrusted by section 64(1) to the Governor-General in Council is, as I understand
it, a power of a different nature altogether: it is a political power for the exercise
of which the Cabinet is to be guided by its views as to the policy which in the
circumstances should be followed in the public interest. Its exercise has nothing
to do with the judicial or quasi-judicial process. The party who proceeds to adopt
the means of questioning an order or a decision of the CRTC provided102
by section
64(1) is choosing to resort to a political, not a judicial process.
Despite this sweeping statement, the Inuit case can be explained by the
fact that the plaintiffs were really challenging the merits of a policy deci-
sion. 10 3 More difficult to rationalize is Martineauv. Inmate DisciplinaryBoard,
Matsqui Institution (No. 2).104 While this case dealt largely with certiorari,105
the appendix to the reasons of Laskin C.J.C. contained the following para-
graphs:
3. There are, however, ministers and officials who have purely administrative
powers that are not subject to judicial review. Such persons must also exercise
their powers on a fair and just basis because they are acting on behalf of the
public; but they are answerable, not to the Courts, but to their superiors or to
the appropriate legislature. They are not required to act on a quasi-judicial
basis.
4. Where a person is aggrieved by a decision that should have been made on a
quasi-judicial basis, he may attack it by way of a certiorari,proceedings in
the nature of certiorarior s. 28 proceedings; but where he has a grievance in
respect of other decisions that are required to be made on a fair or just basis,
(apart from an allegation of nullity or voidability if the decision becomes the
subject of legal proceedings) his remedy is political.106
With respect, it seems that these judgments 07 are incompatible with the
notion of a duty to be fair, and, as such, are incompatible with the Supreme
Court decision in Hardayal.10 8 If the intention of the Federal Court was to
say that administrative functions cannot ever be reviewed, then, with respect,
it is suggested that the Court was in error. If, on the other hand, the Court
wanted to underline once again that, where an administrative (or any other)
function is discretionary, it will not be reviewed on the merits, then the judg-
ments are very much in the mainstream of legal thinking and one can only
regret the use of such sweeping language that seemed to imply much more.
Another possible explanation for these cases is that they reiterate that
102
Inuit Tapirasatof Canadav. LUger, supra note 63, at 32.
10 8 See Bhadauriav. MMI, supra note 30, and accompanying text; and the discus-
sion on "policy" and unreviewability, infra.
10
4Martineauv. Matsqui Inst. (No. 2), supra note 20.
10 5 See Mullan, supra note 21.
106 Martineau v. Matsqui Inst. (No. 2), supra note 20, at 328. This passage was
partially cited supra note 92.
107 An exception is Inuit Tapirasatof Canada v. Liger, supra note 63.
108MMI v. Hardayal,supra note 22. See also Mullan, supra notes 23 and 21. We
should remark that MMI v. Hardayalis not mentioned in Martineau v. Matsqul Inst.
(No. 2), supra note 20.
1979] Discretion
government policy decisions are harder to review than most other kinds. But,
as we shall see, such decisions are not, despite the relatively strong discretion
involved, completely immune from review, and the Federal Court probably
did not intend such a result.
In conclusion, it would almost certainly be wrong to classify all or even
some discretionary administrative functions as reviewable only before the
legislature, and not before the courts. Such a position would wipe out the duty
to be fair, and would be very unfortunate in the modem bureaucratic state,
where political redress is far more difficult to obtain than the judicial kind.
But the Federal Court cases can perhaps remain useful as examples of judicial
restraint on policy issues.
B. Crown prerogative
The jurisprudence yields many statements about the unreviewability of
the exercise of Crown prerogative. Re Multi-Malls Inc. and Minister of Trans-
portation is an excellent example:
The Courts have always been careful to distinguish between acts done pursuant
to the exercise of a statutory power-subject to Court review-and decisions made
109
under the Royal prerogative-which are not per se reviewable by the Courts.
Even this view would clearly allow the courts at least to restrict the
operation of prerogative to its proper limits."10 Now, however, in a rather
arcane case, Lord Denning has gone further:
The prerogative is a discretionary power exercisable by the executive government
for the public good, in certain spheres of governmental activity for which the law
has made no provision, such as the war prerogative (of requisitioning property for
the defence of the realm), or the treaty prerogative (of making treaties with
foreign powers). The law does not interfere with the proper exercise of the discre-
tion by the executive in those situations: but it can set limits by defining the
bounds of the activity: and it can intervene if the discretion is exercised1 im-
properly or mistakenly. That is a fundamental principle of our constitution." 1
Lord Denning's view was not necessarily the view of the other members
of the Court;" 2 nevertheless, it has great appeal and considerable authority
to recommend it. For instance, in Ex parte Lain, there was more than a hint
that any executive authority would be subject to review. 113
More important, a series of decisions of British cases has, without ex-
posing the executive to undue intervention and scrutiny, clearly placed the
prerogative within the ambit of the courts." 4
10
9 Re Multi-Malls, supra note 41, at 58; app'd in Re Doctors' Hosp. and Min. of
Health, supra note 65. See also Kurek v. Solicitor General, supra note 63.
110 I.e., the Crown could not both declare the scope of the prerogative and exercise it.
Il"Laker Airways Ltd. v. Department of Trade, [1977] Q.B. 643 at 705, [1977]
2 All E.R. 182 at 192.
112 But see id. at 728 (Q.B.), 210 (All E.R.) per Lawton Li.:
Far from curbing these powers, by section 19(2) (b) Parliament recognised that
the Crown had them. This is so; but the Secretary of State cannot use the Crown's
powers in this sphere in such a way as to take away the rights of citizens: see
Walker v. Baird, [1892] A.C. 491.
118 R. v. Criminal Injuries Compensation Bd. (Lain), [1967] 2 Q.B. 864, [1967] 2
All E.R. 770 (Div. Ct.).
114
Burmah Oil Co. v. Lord Advocate, [1965] A.C. 75, [1964] 2 All E.R. 348
(H.L.); Conway v. Rimmer, [1968] A.C. 910, [1968] 1 All E.R. 874 (H.L.); Nissan v.
A.G., [1970] A.C. 179, [1969] 1 All E.R. 629 (H.L.).
Speaking of these, Philip Allott said:

There are indications in decisions other than those at present under consideration
that the courts are inclined to be more reticent about controlling the exercise of
prerogative powers than they have, over recent years, come to be in relation to
statutory powers. It is not easy to see why in principle this need be so, provided
that the courts are prepared to acknowledge, as they do in relation to statutory
powers, that there are aspects of the actual exercise of such powers which can,
if at all, properly only be made the subject of check and control in Parliament
and through public opinion. But, within those limits, there is no reason why con-
cepts of unreasonableness, ultra vires and natural justice-the natural legal tests
of any limited legal powers-should not be applied in a similar way to that in
which they are now applied to statutory powers.l11
The only difficulty one can see in applying all the rules of review of
discretion is with respect to the notion of "use of power for wrong purpose."
As Allott himself noted, prerogative powers are not usually created by statute
and the "purpose" may be difficult to determine without an instrument to
construe.1" 6 Despite this minor problem, the subordination of Crown preroga-
tive to judicial review would seem both the proper consequence of our con-
cept of rule of law and a necessity in times of big government.
The principle of restraint in reviewing the merits would still hold at least
as strongly as in other areas of discretion." 7 The court would not substitute
itself for the Crown. It would interfere only to prevent illegal or grossly
unfair conduct.
While this area is by no means free from doubt, it is suggested that, once
again, the interventionist solution is correct and should be accepted, although
it should remain clear that the intervention is for exceptional cases only.
C. Policy
It is generally accepted that the executive is political, has policies which
it wishes to carry out, and is not normally bound by a judicial standard of
impartiality. It is accepted as well that it is not the role of the court to inter-
vene in policy matters. As Friedmann put it:
The second category of governmental exemptions from legal responsibility is far
more important in the everyday practice of administration. It concerns what is
variously called the 'planning' or 'policy-making' decisions of governments and
other public authorities. In its law-making, planning or policy decisions, govern-
ment must not be hampered by contractual or tort liabilities. In the former sphere
this means that either a commitment given to a private individual cannot be con-
strued as contractual or that the contract will be superseded by superior con-
siderations of public policy. 18
An excellent example of judicial restraint where policy issues are con-
cerned was furnished by Lord Denning in Lord Luke of Pavenham v. Minis-
115 Allott, The Courts and the Executive: Four House of Lords Decisions, [1977]
Camb. LJ. 255 at 269.
116 ld. at 266.
11 7 See Bhadauriav. MMI, supra note 30, and accompanying text.
118 Friedmann, Law in a Changing Society (2d ed. New York: Columbia Univ.
Press, 1972) at 39; Professor Friedmann was here most concerned with the Crown's
liability in tort and contract.
1979] Discretion
ter of Housing and Local Government."9 In that case, the Minister had
refused to accept a planning inspector's report on Lord Luke's application for
a building permit. The Minister accepted the findings of fact, but came to
different conclusions. Lord Denning said:
I must say that I have considerable sympathy with Lord Luke. The inspector's
report was very much in his favour. But it must be remembered that the Minister
has the responsibility for planning policy. In order to preserve our countryside he
has adopted a policy of setting out an "envelope" for each village. Development
is permitted within the "envelope" and not outside it. If one person is allowed to
build outside, it will be difficult to refuse his neighbour. So the Minister must be
strict. This is planning policy and nothing else. 1The20
courts have no authority to
interfere with the way the Minister carries it out.
A recent case in which government policy was given priority was Re
Township of Innisfil and City of Barrie,in which the Ontario Municipal Board
was held to be entitled to consider itself bound by a minister's opinion.' 2 1
Indeed, it could be said that the famous case of Calgary Power Ltd. v. Copi-
thorne, so often used to thwart judicial review in Canada, was in essence
nothing more than an illustration of the executive's power to make policy
decisions without interference. 122 The series of Federal Court judgments dis-
cussed earlier in connection with review of administrative functions are also
relevant and helpful as another example of this principle12-
But are policy decisions truly unreviewable? It is submitted that they are
not. As part of the principle that they do not substitute themselves for offi-
cials, the courts try to avoid making blatantly political policy decisions and
decline to judge the merits of government policy. 2 4 As soon as policy deci-
sions are found to be illegal or unreasonable, however, the courts may inter-
fere, as they may with other forms of discretion.
Policy cannot justify the executive's dispensing with the laws.125 Nor can
it justify breaches of the law. 2 6 A pre-established policy may invalidate deci-
sions if the policy prevented the official from considering each case on the
merits, e.g., if a policy of "no parole for drug cases" were instituted. 2 7 Final-
ly, the case of Laker Airways Ltd. v. Department of Trade illustrates that
government policy, even on questions touching the sensitive area of interna-
tional relations, will not be permitted to 28
prevail over private rights in the
absence of clear statutory authorization.
The conclusion is that, although policy issues cannot be reviewed on the
merits, discretion which involves policy may be reviewed on much the same
"19 Pavenham v. Minister of Hous. and Local Gov't, [1967] 3 W.L.R. 801, [1967]
2 All E.R. 1066.
12 0 Id. at 807 (W.L.R.), 1070 (All E.R.).
12
1Re Township of Innisfil and City of Barrie, supra note 67.
122 Calgary Power Ltd. v. Copithorne, supra note 20.
12 8
See Kurek v. Solicitor General and Inuit Tapirasatof Canada v. Liger, supra
note 63, and accompanying text.
124
See Bhadauriav. MMI, supra note 30. See also Mullan, supra note 21.
125 E.g., R. v. Catagas, supra note 90.
126 Manitoba Gov't Employees Ass'n v. Manitoba, supra note 86.
12 T De Smith, supra note 16, at 274-77. But see Re Township of Innisfil and City of
Barrie,supranote 67.
128 Laker Airways Ltd. v. Department of Trade, supra note 111.
grounds as other discretion. It is possible that, in certain cases, review may

prove somewhat harder to obtain.
D. Wartime legislation
It is an acknowledged fact that wartime emergency legislation has proved
very resistant to judicial review and that discretion exercised under such acts
has generally been supported beyond peacetime norms. 2 However, the Ref-
erence Re Regulations (Chemicals) under War Measures Act makes it clear
that no new unreviewable power has been created. 130 While upholding most
of the challenged regulations, Duff C.J.C. said:
It is perhaps advisable to observe also that subordinate agencies appointed by the
Governor General in Council are not, by the War Measures Act, outside the set-
tled rule that all statutory powers must be employed in good faith for the purposes
for which they are given, although here again, as regards the present Reference,
that rule has only a theoretical interest.' 31
The War Measures Act cases are thus no different in principle from
others; it is only that a national emergency may at times make the practise
rather more peremptory.
E. Privative Clauses
To the extent that privative clauses can exclude judicial review in ad-
ministrative law, they can exclude judicial review of discretion. Since discre-
tion is not the same thing as jurisdiction, 32 a privative clause, even according
to the traditional restrictive view, 33 could have had great effect where misuse
of discretion did not entail loss of jurisdiction. Now, with the new force given
privative clauses by Pringle v. Fraser and Re Executors of the Estate of
Woodward and Minister of Finance,privative clauses could prove to be the
most efficient instrument for delegating virtually limitless discretion.8 4 This is
not the place for a detailed analysis of problems associated with privative
clauses, but the possibility that the recent successes of interventionists in cases
like Laker, Congreve, Tameside and Multi-Malls will be largely nullified by
privative clauses must be noted with apprehension. 3r
F. Domestic Tribunals
There are many cases in which public law recourses are denied because
the decision-making body was a "domestic tribunal"' 3 6 or because the rela-
129The best-known example is Liversidge v. Anderson, [1942] A.C. 206. [1941] 3

All E.R. 338, but there are countless others.
130 Reference Re Regulations(Chemicals) under War MeasuresAct, [1943] S.C.R. 1.
This case deals with the validity of delegated legislation, but the principles are the same.
1311d. at 13.
13 2 See the discussion of these terms in the text accompanying notes 16 and 17,
supra.
133 E.g., R. v. WCB (1968), 70 D.L.R. (2d) 313 (Alta. S.C.).
134 Pringle v. Fraser, [1972] S.C.R. 821, 26 D.L.R. (3d) 28; Woodward Estate v.
Minister of Fin. (1972), 27 D.L.R. (3d) 28 (S.C.C.), afl'g 21 D.L.R. (3d) 680
(B.C.C.A.).
135 Laker Airways Ltd. v. Department of Trade, supra note 111; Congreve v. Home
Office, supra note 43; Secretary of State for Educ. and Science v. Tameside Metropolitan
Borough Council, supra note 2; Re Multi-Malls, supra note 41.
13 6R. v. Board of Visitors of Hull Prison, [1978] 2 W.L.R. 598 (Q.B.D.).
19791 Discretion
tions between the parties were purely contractual. 137 Such cases have theoret-
ically nothing to do with discretion or unreviewability as such, but rather with
the boundaries between private and public law.
Despite weighty jurisprudence to this effect, it is difficult to accept this
explanation in the case of prison disciplinary tribunals. Where a domestic
tribunal is connected with a private club or even a professional association,
the contractual avenue may provide an adequate recourse, and it is arguable
that the parties have bound themselves contractually to respect the tribunal's
decision. 138 Neither of these points makes sense in a prison situation. There-
fore, the Hull Prison case seems rather to be hinting at a special form of un-
reviewable discretion-that of prison discipline (and possibly certain other
similar fields).139 The true rationale is public order, and this becomes evident
when Lord Denning is quoted on this topic:
I am conscious of the fact that Lord Denning M.R. is so right, if I may say so,
in his judgment and the observation he made about this problem in Becker v.
Home Office [1972] 2 Q.B. 407, 418 where he said:
"If the courts were to entertain actions by disgruntled prisoners, the gov-
ernor's life would be made intolerable. The discipline of the prison would be
undermined. The Prison Rules are regulatory directions only. Even if they
are not observed, they do not give rise to a cause of action."' 40
These cases bear resemblance to the two recent Canadian cases involving
prison discipline, 141 and perhaps the whole subject should be viewed as sui
generis, without broad implications for administrative law.
Even so, it is difficult to believe that the discretion given to these unlike-
ly "domestic tribunals" is truly unreviewable and that the most blatant abuse
would be tolerated by the courts. What, for instance, if prison officials violated
all notions of humanity or decency in their penalties? What if prisoners' safety
were endangered? What if prisoners were given internal self-government so
that the stronger could terrorize the weaker through "domestic" trials? It is
obvious that a limit must exist and that courts would at some point determine
where it lies, giving prison officials more42 rope than other officials, but still
denying them infinite quantities of rope.1
The final conclusion on unreviewability must be that it is no part of our
law. Some discretions (e.g., wartime or prerogative ones) are stronger (in
Dworkin's sense) than others, but all are subject to review at some point.
137 Vidyodaya Univ. of Ceylon v. Silva, [1965] 1 W.L.R. 77, [1964] 3 All E.R.
865 (P.C.).
138 Pett v. Greyhound Racing Ass'n (No. 2), [1970] 1 Q.1. 46, [1969] 2 All E.R.
221.
130 R. v. Board of Visitors of Hull Prison, supra note 136.
140 Id. at 606.
141 Martineau v.Matsqui Inst. Inmate Disciplinary Bd. (No. 1), [1978] 1 S.C.R.
118. See also Martineau v. Matsqui Inst. (No. 2), supra note 20. Parole cases also tend
to be decided in this manner (e.g., Howarth v. National Parole Bd., supra note 29).
142 One might argue, however, that the courts could apply private law remedies-
damages and injunctions. Indeed, R. v. Board of Visitors of Hull Prison, supra note 136
only decides that certiorariis unavailable in these cases.
On the subject of prison correction and administrative law, see Price, Doing Justice
to Corrections?Prisoners,Paroleesand the Canadian Courts (1977), 3 Queen's L.J 214.
It should be added that if a discretion were created so strong that no
court could review it, even for clear excess of jurisdiction, the official entrusted
with this power would be usurping not only the functions of a court, 48
but
also of the legislature. He would be no less than a dictator, and the logic of
our division of power would be destroyed. Since this division has been judi-
cially recognized and invoked in many different situations, 44 it is likely
that the courts would find a way of striking down an instrument that pur-
ported to grant such vast powers or else of limiting the power by attaching to
it the fundamental duties which restrict the use of discretion.
VIII. THE GENERALITY OF THE PRINCIPLES DISCUSSED

It is important to remember in a discussion of this type that the prin-
ciples involved are the basic principles of administrative law and that they
recur, with slight modifications, in all areas of the subject.
For instance, the basic rules of review are the same as the basic rules for
determining the validity of delegated legislation. The same duties to act in
good faith, reasonably, and on relevant considerations apply in both cases." 45
The War Measures Act cases affect all areas of law, rendering review
more difficult in practice.
The questions of government policy are also not confined to discretion.
They are frequently present in discussions of tort and contract, 40 as well as
47
in problems involving bias.
The notion of the court's ultimate right to intervene in all matters is also
very firmly entrenched,1 48 and indeed one could view democracy as depending
on it for survival.
The requirement of good faith is a general one in public law and relief
is axiomatic whenever bad faith is found, especially if moral turpitude is
involved.
Where the question of "relevant grounds or reasonableness" arises, re-
course may be had to well-established rules of statutory interpretation, such
as avoiding injustice, 149 affecting vested rights as little as possible,' r and
143 Thus possibly violating section 96 of The British North America Act, 1867, 30
& 31 Viet., c. 3.
144 E.g., Gouriet v. Union of Post Office Workers, [1977] 3 W.L.R. 300, [1977] 3
All E.R. 70 (H.L.); and Hinds v. The Queen, [1977] A.C. 195 (P.C.).
145 See, for instance, Reference Re Regulations (Chemicals) under War Measures
Act, supra note 130, and Toronto v. Forest Hill, [1957] S.C.R. 569. However, in cases
of delegated legislation, unlike ordinary cases of discretion, it is difficult to speak of a
duty to be fair.
146 Rederaktiebolaget Amphitrite v. The King, [1921] 3 K.B. 500; Roman Corp. v.
Hudson's Bay Oil and Gas Co., [1973] S.C.R. 820, 36 D.L.R. (3d) 413.
147 R. v. Pickersgill (1970), 14 D.L.R. (3d) 717 (Man. Q.B.).
148 See, for instance, A.G. v. Chaudry, supra note 96.
149 Langan, Maxwell on the Interpretationof Statutes (12th ed. London: Sweet &
Maxwell, 1969) at 167 and 208-10.
150 Id. at 212-15.
1979] Discretion
preventing absurd or unreasonable results. 5 1 These rules are all subordinated

to the cardinal rule of statutory interpretation-that of reading the words as
they stand. Nevertheless, they are strikingly similar to aspects of the prin-
ciples of review of discretion.
When these links are considered, it becomes apparent that administrative
law, for all its conceptual difficulties, is animated by a very small number of
basic principles concerning the use of power and that if one simplified the
concepts (e.g., discretion, jurisdiction) by careful definition, the entire field
would become very straight-forward.
Review of discretion and remedies
No discussion of any area in administrative law would be complete with-
out a discussion of the remedies open to those aggrieved. The remedies con-
stitute the largest factor of uncertainty and unpredictability.' 52
It appears that the nature of the remedy open to a complainant depends
not on the presence or absence of discretion or the "strength" of the discre-
tion, 53 but rather on the nature of the function.
Where an official is exercising a judicial function, certiorari,prohibition
and their statutory equivalents or replacements'" will be available for an ex-
cess of jurisdiction, including a violation of natural justice and for error on
the face of the record. 155 It is possible as well that these remedies will be
available for administrative functions where 57the duty to be fair is not ob-
served, 55 but that is still a contentious issue.
There appears to be little sense in placing on attorneys the burden of
deciding, in advance, the type of function involved, especially since numerous
151 Id. at 210-12.

152 On the subject of complexity and unpredictability of remedies, see Dussault,
supra note 2, at 1067.
1r If the discretion was properly exercised, however, there can be no remedy.
154 E.g., Federal Court Act, S.C. 1970-71-72, c. 1, s. 28.
I'5 But probably not where there is a privative clause in the latter case.
156 R. v. London Borough of Hillingdon, [1974] 2 All E.R. 643, sub nom. R. v.
Hillingdon London Borough Council, [1974] Q.B. 720.
157 De Smith, supra note 16, at 301-02 and at 67, is more optimistic about the use
of certiorari.In Canada, the case of Martineau v. Matsqui Inst. (No. 2), supra note
20, seems to reiterate the old distinctions. It is possible, however, that the last paragraph
in Hardayalv. MMI, quoted in full, supra note 22, will open the door for a more flexible
approach. It would be a step forward if Canadian courts adopted the view put forward
recently in R. v. Board of Visitors of Hull Prison, supra note 136, at 603:
One must start this question of whether certiorari will or will not go with a
recognition of the fact that there is not, and one may hope never will be, a precise
and detailed definition of the exact sort of order which can be subject to certiorari.
If we ever get to the day when one turns up a book to see what the limit of the
rights of certiorari is it will mean that the right has become rigid, and that would
be a great pity. Therefore, we approach it today, in my judgment, on the basis that
there are no firm boundaries, and one has to look to such clear and useful, helpful
pointers as, with the assistance of counsel, we have been able to derive from the
authorities.
jurisprudential examples illustrate that such decisions are far from simple or
mechanical. 58
The availability of the writ of mandamus is less problematic. Despite
occasional and, with respect, heretical dicta to the contrary,'r5 the distinction
between administrative and judicial functions has no place here, and the writ
can issue whenever a public duty is not performed. Since discretion is always
coupled with a duty, it follows that this is a very useful remedy in reviewing
abuse of discretion.
Although mandamus will issue to compel the performance of a duty, it
will usually not compel a particular result in the exercise of discretion. 1G 0
However, where an exercise of discretion is patently incorrect, the courts may
treat it as void and thus, indirectly, compel a different result by mandamus.161
Nevertheless, the theoretical explanation must remain the breach of a funda-
mental duty, which is enforced by mandamus.
It is possible that greater intervention in the merits of the exercise of
discretion could be justified in Qu6bec than elsewhere, because article 844
of the Code of Civil Procedure speaks not only of commanding the perform-
2-
ance of a duty but also of an "act which is not of a purely private nature."
However, if a broader base for review exists, it has so far remained unnoticed
by the courts, and no cases can be found concerning this difference.
The declaration is possibly the safest remedy; it is certainly the safest in
proceedings against the Crown. However, it too may be subject to technical
158 E.g., Howarth v. National ParoleRd., supra note 29.

159 Services Juridiquesde St-Louis Inc. v. Commission des Services Juridiques, supra
note 19.
160 Reid, Administrative Law and Practice (Toronto: Butterworths, 1971) at 381.
This is part and parcel of the principle that discretion is not reviewed on the merits.
161Padfield v. Minister of Agriculture, Fisheries and Food, supra note 66; R. v.
Leong Ba Chai, [1954] S.C.R. 10. This is described as follows in Griffith and Street,
Principlesof Administrative Law (4th ed. London: Pitman and Sons Ltd., 1967) at 239:
Sometimes mandamus may control a discretion even more closely. The court
may exclude so many considerations as being wrong ones that the administrative
body is left without a choice, and must act in a particular way; in such a case the
court will order it to act in that manner.
162 Code de procddure civile ArL 844:
Any person interested may apply to the court to obtain an order commanding a
person to perform a duty or an act which is not of a purely private nature, more
particularly:
1. when a corporation, public body, or group of persons contemplated in article
60 omits, neglects or refuses to perform any duty or act incumbent upon it by
law;
2. when a corporation or group of persons contemplated in article 60 omits,
neglects or refuses to proceed to an election which by law it i 2bound to make,
or to recognize such of its members as have been legally chosen or elected, or
to reinstate those who have been removed without lawful cause;
3. when a public officer, or a person holding an office, or a person holding an
office in a corporation, a group of persons contemplated in article 60, a public
body or a court subject to the superintending and reforming power of the
Superior Court, omits, neglects or refuses to perform a duty belonging to such
office, or an act which by law he is bound to perform;
4. when an heir or representative of a public officer omits, neglects or refuses to
do an act which, in such capacity, he is bound by law to perform.
19791 Discretion
limitations. 103 There is jurisprudence to the effect that a declaration under

section 18 of the Federal Court Act will issue only on an action, whereas
mandamus, prohibition and the other remedies may be obtained by motion.,"
Thus, once again, the rights of parties are made dependent upon a choice
made by their lawyers. 1
Among other remedies at times open for abuse of discretion are injunc-
tions' and damages. 167 At the end of Freedom Under the Law, Lord Denning
wrote:
Just as the pick and shovel is no longer suitable for the winning of coal, so also
the procedure of mandamus, certiorari, and actions on the case are not suitable
for the winning of freedom in the new age. They must be replaced by new and
up to date machinery, by declarations, injunctions, and actions for negligence:
8
and, in judicial matters by compulsory powers to order a case stated.16
Despite his plea, the remedies of injunction and damages have remained
marginal in this area.
The way out of this morass must be either the legislative creation of a
general application for review 169 or the proposition made by Wade:
The solution should be to make all remedies interchangeable, so that the court
can award whichever is most suitable, irrespective of the procedure, and irrespec-
tive of the group to which the remedy belongs. Here is a clear case for law reform.' 70
It would seem logical that this last simplification could be brought about
by courts alone, without parliamentary interference,' 7 ' and it is respectfully
suggested that no time should be lost.
IX. CONCLUSIONS
It is difficult to reach specific and categorical conclusions in a survey
essay of this nature. However, the following tentative conclusions might be
accepted:
103 See, for example, Punton v. Minister of Pensions and Nat'l Ins., [1964] 1
W.L.R. 226, where a declaration is held not to lie where it would contradict a subsisting
ministerial order and thus produce two inconsistent "decisions." See also Poitras v. A.G.
Alta. (1969), 7 D.L.R. (3d) 161 (Alta. S.C.).
164 B. v. Commission of Inquiry re. Dep't of Manpower and Immigration, [1975]
F.C. 602, 60 D.L.R. (3d) 339 (F.C.T.D.).
110The holding in B.'s case, id., is currently being challenged before the Federal
Court of Appeal in Ospina v. Lefebvre after apparently having been upheld by Mr.
Justice D~cary, unreported, T-1263-78 (F.C.T.D.).
100
See, for instance, Podrusse v. Commissairesd'dcoles de St-Lgonard-de-Port-Maurice,
[1970] C.A. 324.
167 See Roncarelli v. Duplessis, supra note 49; and Gershman v. Manitoba Vegetable
Producers' Marketing Bd., supra note 50. The recourse in damages is essentially a private
law one, used in public law most often when an official is found outside the limits of his
discretion or is no longer acting in his public capacity.
108 Denning, Freedom Under the Law (London: Stevens, 1949) at 126.
109 Something that England, Ontario and New Zealand (to name a few) now
appear to have done.
170 Wade, supra note 48, at 556.
171 This was Lord Denning's view in Freedom Under the Law, supra note 168, at
1. Discretion means essentially "power" and is, in public law, always coupled
with certain basic duties. Therefore, there is always a limit to judicial re-
straint in this field.
2. Discretions have different "strengths," and the threshold of judicial inter-
vention varies from statute to statute and from situation to situation, although
the principles remain fairly constant.
3. It is important to define discretion so as to separate it clearly from the
other fundamental concepts of administrative law. Once the concepts are
established, many of the complexities of the subject evaporate.
4. We live in an era of expansion of the concepts of "unreasonable" use of
discretion and use of discretion on irrelevant grounds, or in a manner con-
trary to the purposes of an instrument creating it. Except for Re Multi-Malls,172
the leading cases on the subject have been British cases, and the pioneering
judge has often been Lord Denning. There is no reason to think that, even
with Canada's recent conservatism in administrative law, 73 the basic prin-
ciples do not obtain here. There is no fundamental difference between Cana-
dian and British administrative law, and it would be to our detriment to
attempt to create one in this area. 74
5. No expansion of review of discretion can eliminate the principle that
courts do not interfere on the merits and substitute their opinions for those of
officials. To say otherwise would constitute a violation of our division of
powers, and would turn the courts into a superexecutive. This would probably
be administratively unmanageable, as well as constitutionally undesirable.
6. Crown prerogative, while justifiably difficult to review, is no longer to be
viewed as outside control at all times.
7. The expansion of review of discretion is justified by the corresponding
expansion of government, with increasing potential for abuse. The new weight
given privative clauses, although it has as yet had no serious consequences in
this area, can give rise to legitimate worry about the future, because it could
check the trend towards review without affecting the growth of bureaucratic
power.
8. The remedies must be simplified without delay, and the Federal Court
Act is a prime candidate for reform.
9. It is an essential part of our ideology that no official or type of case is
entirely immune from review. Some may be more protected than others, but
everyone works and lives under the law and therefore under the courts. This
should be kept in mind at all times.
72
1 Re Multi-Malls, supra note 41.
' 73 As contrasted with our vision twenty-five years ago. See Beaudoin, La Cour
supreme et la protection des droits fondamentaux (1975), 53 Can. B. Rev. 675.
174 Or, it is suggested, in any other.

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I. THE CONCEPT OF DISCRETION

o Copyright, 1979, J. H. Grey.

3 Hohfeld, Some FundamentalLegal Conceptions as Applied in Judicial Reasoning

14 Dias, supranote 6, at 267.

IV. DISCRETION AND THE ADJECTIVES "ADMINISTRATIVE" AND

The words "judicial,.... quasi-judicial" and "administrative" play a great

20See Martineau v. Inmate Disciplinary Bd., Matsqui Inst. (No. 2) (1978), 40

27 Le., "strong" or "weak" discretion.

If Bhadauria,Koula Gana and Martineau35 were given a broader mean-

VI. GENERAL PRINCIPLES OF REVIEW OF DISCRETION

56 Was Roncarelli v. Duplessis, id., a case of personal vindictiveness or was it a case

an area of some uncertainty. An "interventionist," such as Lord Denning, has

to state that in the evidentiary area the "conservative" view appears

cies of a Conservative local authority. There was then a conflict of discre-

81 See MMI v. Hardayal,supra note 22.

cretionary powers. Generally, powers must be exercised by those entrusted

It is true that, as with Bhadauriav. MMI, such dicta can be explained

In my view, in making decisions under 64(1), the Governor-General in Council

Speaking of these, Philip Allott said:

grounds as other discretion. It is possible that, in certain cases, review may

129The best-known example is Liversidge v. Anderson, [1942] A.C. 206. [1941] 3

VIII. THE GENERALITY OF THE PRINCIPLES DISCUSSED

preventing absurd or unreasonable results. 5 1 These rules are all subordinated

151 Id. at 210-12.

158 E.g., Howarth v. National ParoleRd., supra note 29.

limitations. 103 There is jurisprudence to the effect that a declaration under

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