Mind the Justificatory Gap: Fairness in Administrative Law through the Rule of Law as a Normative Exercise in Reviewing Regulated Conduct

Regulatory regimes alter the legal obligations on parties that engage in regulated conduct. Three claims are made: (1) In the sphere of regulated activities, the default assumption the law makes about one's ability to take any action is altered from a presumption that one is at liberty to perform an action to a presumption that one requires permission insofar as that action is within the regulated sphere of activity; (2) This changed presumption about the lawfulness of conduct calls for a higher degree of justification; and (3) Oversight of administrative action, whether through appeals, legislative revision to regulation, or judicial review, requires an understanding of the Rule of Law as a normative exercise.;These claims are examined through three case studies: (i) Administrative Monetary Penalty Regimes and their enforcement; (ii) Unauthorized Practice Applications/Prosecutions by regulatory bodies; and (iii) exercises of the public interest jurisdiction by the Ontario Securities Commission.