| The Canadian administrative state has changed significantly since the first half of the twentieth century, but legal scholarship has paid scant attention to how such changes might affect the administrative state's legitimacy. This thesis argues that the traditional mechanisms for legitimating the increasingly complex and diffuse administrative state are no longer sufficient, particularly in the context of delegated law-making. It uses a republican model of legitimacy to argue for the necessity of citizen control over administrative decision-making.;It is incumbent on Canadian administrative law to help provide this citizen control. A concern with legitimacy is consistent with the first principles of administrative law and judicial review, and the doctrine of procedural fairness is well placed to further the participatory vision of legitimacy the thesis employs. Further, the history of procedural fairness shows that legitimacy of decision-making has always been a core concern of the doctrine. However, more recent developments, including a fixation on adjudicative decision-making and the refusal to apply procedural fairness to delegated law-making, mean that Canadian administrative law does not sufficiently facilitate citizen control. This is inconsistent with both the internal values of Canadian administrative law and the civic republican vision of legitimacy. There is, however, a separate line of bylaws jurisprudence which more generously extends procedural fairness to delegated law-making. The thesis argues this bylaws jurisprudence is a good starting point to build from.;The experience of comparative administrative law makes it even clearer that Canadian administrative law is able to do this legitimating work. The United Kingdom, New Zealand, and Australia all provide broader participation rights in the law-making sphere with weaker tools than are available in Canada. Further, the domestic aboriginal law duty to consult and accommodate make it clear that the Canadian courts are already comfortable imposing broadly applicable procedural rights.;Building from this comparative and cognate jurisprudence and the bylaws cases mentioned above, the thesis argues that it is possible with only limited substantive changes to the law to develop the doctrine of procedural fairness to provide broad participatory rights in the delegated law-making sphere, thereby securing the legitimacy of the administrative state. |
