McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montreal
1989
Volume 34
No I
The Administrative Law Scholarship of D.M. Gordon
Kent Roach*
La contribution de D.M. Gordon au droit
administratif d~passe la <(pure > thorie de
Ia comp6tence. L’auteur 6tudie l’oeuvre et les
pr~misses de Gordon et les situe dans leur
contexte historique. Iauteur soutient que
Gordon fut un pionnier prolifique et original
du droit administratif canadien. Parce qu’il
tentait d’expliquer le droit d’une fagon lo-
gique et coh~rente, Gordon appartient pro-
prement A la tradition de Ia primaut6 du
droit. Mais cette appartenance ne l’a pourtant
pas rendu hostile i l’ mergence de l’6tat ad-
ministratif contrairement A Dicey. En fait,
Gordon soutient fermement la possibilit6
d’une distinction claire entre, d’une part, les
fonctions administratives et judiciaires et,
d’autre part, Ia politique et le droit. Ces dis-
tinctions entrainent un concept limit6 de l’er-
reur juridictionnelle qui est tr~s favorable
aux instances administratives.
The best known contribution of D.M. Gor-
don’s administrative law scholarship is his
“pure” theory of jurisdictional review. The
author contends that Gordon should be bet-
ter understood as a distinctive and prolific
pioneer of Canadian administrative law
scholarship. In attempting to expound law in
an autonomous and internally consistent
fashion, Gordon is best understood as a
thinker in the Rule of Law tradition. How-
ever, this intellectual framework did not lead
Gordon to the hostility towards the admin-
istrative state exhibited by Dicey. Indeed, the
bold distinctions Gordon drew between ju-
dicial and administrative functions, and be-
tween review of the scope of authority as
opposed to the manner of its exercise, re-
sulted in a very limited role for judicial re-
view of administrative activity. Gordon’s
theories ofjudicial review exhibited over fifty
years of scholarly activity are related to his
understanding of law as based on internal
logic and the dichotomies between law and
politics and between adjudication and dis-
cretion. The author assesses Gordon’s schol-
arship and its underlying premises and places
Gordon’s thought in its historical context.
*Assistant Professor, Faculty of Law, University of Toronto (effective 1 July 1989). I wish to
thank Professor R.C.B. Risk of the Faculty of Law, University of Toronto, for suggesting to
me that Gordon’s thought should be examined, and for providing generous advice and support
during all stages of the preparation of this paper. Professor Risk has done much to improve
my understanding of administrative law and legal history, but that does not make him re-
sponsible for the shortcomings of this paper. Professor Hudson Janisch of the Faculty of Law,
University of Toronto, and Dean R.A. Macdonald of the Faculty of Law, McGill University,
provided helpful and thoughtful comments on a draft of this paper. I also gratefully acknowledge
biographical and bibliographical information provided by Diana M. Priestly, Professor Emeritus
of the Faculty of Law, University of Victoria, and Mrs. Irene Godfrey of the University of
REVUE DE DROIT DE McGILL
[Vol. 34
Synopsis
Introduction
I.
II. A Limited Concept of Jurisdictional Review
III. The Distinction Between Administrative and Judicial Functions
IV. Gordon and His Contemporaries
V.
Implications of Gordon’s Thought: Past and Present
I.
Introduction
The legacy of D. M. Gordon’s administrative law scholarship consists
of a few pesky footnotes concerning his “pure” theory of jurisdiction. This
theory limits jurisdictional errors to decisions outside the scope of a tri-
bunal’s authority and does not include any errors made in the manner in
which the authority is exercised. Yet Gordon should be better understood
as a prolific and distinctive pioneer of Canadian administrative law schol-
arship. Starting in the 1920s and continuing into the 1970s, he published
over eighty articles and notes in major British and Canadian legal journals.
A practising lawyer from British Columbia, Gordon wrote in his role as
part-time scholar with a fearless sense of mission in an effort to rationalize
the manner in which courts intervened to review decisions made by ad-
ministrative bodies and inferior courts. Gordon is intriguing in part because
he was almost always out of step with both judicial and academic attitudes
towards judicial review. He dismissed scores of cases in which courts had
intervened out of “expedient” or “sympathetic” motives which he believed
endangered the conceptual and logical coherence of the law and the promise
it held as an objective means of discovering and enforcing pre-ascertained
standards. Although Gordon was adept in recognizing and illustrating in-
consistencies and anomalies in administrative law jurisprudence, he never
Victoria’s Law Library.
@McGill Law Journal 1989
Revue de droit de McGill
1989]
D.M. GORDON’S SCHOLARSHIP
shared the scepticism about the objectivity and autonomy of the judicial
enterprise which realist legal scholars embraced. Moreover, Gordon never
adopted the qualitative and policy-sensitive reasoning of various function-
alist approaches to judicial review. Gordon will be presented in this paper
as a legal thinker in an older tradition often associated with Dicey. Gordon’s
thought can be seen as an attempt to follow in the text-book tradition of
the late nineteenth century which expounded law that aspired to be prin-
cipled, objective, internally consistent and scientific.’
Although Gordon was a practising lawyer who received his training in
a law office, he wrote his articles in no less than this grand text-book tradition
pioneered by Dicey and his Oxford colleagues. 2 He ambitiously sought to
identify a few general principles which would explain judicial review and
provide an objective guide for its use. With Dicey, Gordon shared an am-
bition to be a theorist who demonstrated that a mass of isolated decisions
could be regarded as illustrations of a few leading principles.3 Gordon and
IIn referring to the Rule of Law thought of Dicey and the text-book tradition, I am greatly
indebted to the work of Professor David Sugarman. See generally D. Sugarman, “Legal Theory,
the Common Law Mind and the Making of the Textbook Tradition” in W. Twining, ed., Legal
Theory and Common Law (Oxford: Basil Blackwell, 1986) and “The Legal Boundaries of
Liberty: Dicey, Liberalism and Legal Science” (1985) 46 Mod. L. Rev. 102. Other useful ac-
counts of the form of classical legal consciousness dominant in the late nineteenth and early
twentieth century are found in E. Mensch, “The History of Mainstream Legal Thought” in D.
Kairys, ed., The Politics of Law (New York: Pantheon, 1982) at 23ffand D. Kennedy, “Toward
an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in
America, 1850-1940” in S. Spitzner, ed., Research in Law and Sociology, vol. 3, (Greenwich,
Conn.: Jai Press, 1980) (Series ed.: R.J. Simon) at 3. Gordon became a lawyer in 1916 just as
the reign of classical legal consciousness or Rule of Law thought waned, but his thought through-
out the next five decades remained rooted in that intellectual framework.
2Gordon held legal scholarship in very high esteem and believed scholars had a crucial role
to play in the development of law. In his first major article on jurisdiction, Gordon prefaced
his analysis by noting: “There is no English textbook on jurisdiction. That want must have a
bearing, either as cause or effect, on the fact that in no branch of English law is there more
confusion and conflict.” [Gordon, “The Relation of Facts to Jurisdiction” (1929) 45 L.Q. Rev.
459.] He repeated similar observations in other fields. See for example: Gordon, “Persona
Designata” (1927) 5 Can. Bar Rev. 174; and, “Effect of Reversal of Judgement on Acts Done
Between Pronouncement and Reversal” (1958) 74 L.Q. Rev. 517.
3A.V. Dicey, “Droit Administratifin Modem French Law” (1901) 17 L.Q. Rev. 302 at 312.
For Gordon, the scholar was a potential Hercules who could bring out the coherent principles
underlying the mass of case law. In his first article on jurisdiction he stated: “To segregate the
logical from the sophistical throughout the whole field of jurisdiction would be a labour of
Hercules, but what follows is an attempt to ventilate one of the worst comers of the Augean
stable.” [Gordon, “The Relation of Facts to Jurisdiction”, supra, note 2 at 460.] Today this
scholarly Hercules continues to strive towards the discovery of coherence in the law through
the writings ofRonald Dworkin. For a provocative argument that Dworkin’s Hercules is armed
with distinctions between principles and policies, and judicial and legislative functions that
would not be foreign to Dicey or, in my view, Gordon, see T.R.S. Allan, “Dworkin and Dicey:
The Rule of Law as Integrity” (1988) 8 Oxford J. Legal Stud. 266.
McGILL LAW JOURNAL
[Vol. 34
Dicey both believed it was possible and desirable to reduce a branch of law
“to a few logical principles by the books of well-known writers”, 4 and they
endeavoured to accomplish that task. Although based on the same intel-
lectual framework, Gordon’s thought did not demonstrate either the hostility
towards the rise of the administrative state which made Dicey famous, or
the ideological and historical consciousness which characterized much of
Dicey’s writings.
Rule of Law thought, with its celebration of the principles of legality
and constitutionality, is today associated with extensive judicial intervention
and hostility towards administrative activity, but Gordon’s work suggests
that such a reaction was not the only possible option within that intellectual
framework. In the absence of statutory rights or explicit provisions for ap-
peal, Gordon was willing to leave wide room for administrative bodies to
make decisions without fear of judicial intervention arising from disagree-
ments about the manner in which power was exercised. As a consequence,
Gordon’s doctrinal arguments more often than not came down on the side
of unfettered administration. It will be suggested, however, that the results
Gordon reached were the product of the epistemology of the Rule of Law
tradition, and not of any articulate sympathy towards the developing ad-
ministrative state.
The next two parts of this paper will outline Gordon’s major contri-
butions to administrative law scholarship and the understanding of law
which underlies these doctrinal arguments. First, Gordon’s limited concept
of jurisdictional review will be examined. Gordon’s thought relied heavily
on a faith in self-executing concepts which left no room for dispute or the
exercise of judgment. As a result, Gordon was vehemently opposed to ju-
dicial review on the basis of errors in determining jurisdictional facts, and
he argued that neither the merits of a tribunal’s decision nor the method
by which the decision was made affected the tribunal’s jurisdiction. Fur-
thermore, Gordon rejected the concepts of natural justice, irrelevant con-
siderations or reasonableness as stable and principled bases for judicial
review. This understanding of jurisdictional review can best be explained
by Gordon’s understanding of statutory interpretation and his penchant for
categorical reasoning.
The bold and confident distinction Gordon made between judicial and
administrative functions then will be examined. Gordon’s arguments were
based on an understanding of adjudication as the objective recognition of
pre-existing rights. This conception of adjudication stood in contrast to his
understanding of administration and legislation as the arbitrary and sub-
jective exercise of will which could not be judged or restrained by standards
4Dicey, “Droit Administratif in Modem French Law”, supra, note 3 at 312.
1989]
D.M. GORDON’S SCHOLARSHIP
of reasonableness. The dichotomy of adjudication and discretion produced
a sometimes uneasy mixture of a sense of objectivism through judicial dis-
covery of clear limits, as well as a sense of subjectivism and relativism
through the exercise of unfettered discretion within those limits.
The fourth part of this paper will begin to place Gordon in historical
context by comparing him to some of his contemporaries. Gordon’s career
spans the time of Dicey, the sociological jurisprudence of Pound and others,
the realists, the policy-oriented, functionalist scholarship of the 1950s and
the 1960s and the McRuer Commission. Gordon’s intellectual framework
was closest to that of Dicey and McRuer, but unlike them he refused to
sacrifice the internal logic of principles to champion judicial review as a
means to curb the administrative state and impose the values of the ordinary
courts. The insights of sociological, realist and functionalist jurisprudence
were apparently lost on Gordon, but it is significant that he could tolerate
their frank recognitions of unguided judicial and administrative discretion
more than he could their attempts to make legal concepts qualitative and
purposive.
The last part of this paper will concern the strength and weakness of
Gordon’s thought with an eye to both the past and present. The solitary
echo of Gordon’s voice was not inevitable. Gordon’s arguments left much
room for the development of the administrative state and they appealed to
deep strands in Rule of Law thought concerning Parliamentary supremacy
and the dichotomies between adjudication and discretion and between law
and politics. On the other hand, Gordon’s arguments hold out an extremely
modest, even impoverished, understanding of the role of law in the control
of administrative activity. Gordon maintained his faith in principled and
objective law while Dicey and others yielded to the temptation to celebrate
even haphazard review by ordinary courts. For those who came after Dicey,
Gordon’s neat logical arguments seemed unrealistic. However, they still in-
voked respect in the profession’s “logical conscience”. 5 Gordon’s under-
standing of law continued to have a hold on lawyers’ minds even after they
began to see judicial review more as a purposive instrument than as a
conceptual construct.
5Dicey, Lectures on the Relation Between Law and Public Opinion in England During the
Nineteenth Century (London: MacMillan, 1905) at 362. Dicey used this phrase to describe the
character of “judicial legislation”. Many leading text-books continue to pay their respects to
the logic of Gordon’s “pure” theory ofjurisdiction. See PP. Craig, Administrative Law (London:
Sweet & Maxwell, 1983) at 304-7; S.A. de Smith, JudicialReview ofAdministrative Action, 4th
ed. by J.M. Evans (London: Stevens, 1980) at 110-19; J.M. Evans et al, Administrative Law
Cases, Text and Materials, 2d ed. (Toronto: Emond Montgomery, 1984) at 512-3; S.D. Hotop,
Principles ofAustralian Administrative Law, 6th ed. (Sydney: Law Book Co., 1985) at 250; and
H.W.R.Wade, Administrative Law, 5th ed. (Oxford: Clarendon Press, 1982) at 267-70.
REVUE DE DROIT DE McGILL
[Vol. 34
Questions remain whether Gordon’s warnings about the limits of”prin-
cipled” law in the administrative process should be heeded, and whether
the analogy he made between the role of administrative bodies to that of
legislatures may be particularly appropriate in a Canadian political culture
which embraces the positive state and is capable of great deference to the
ability of public authority to determine the public interest. In that light,
Gordon’s provocative analogy of administration to legislation may be at-
tractive, and his narrow vision of jurisdictional review useful. Those who
have greater ambitions about the ability of the law to supervise adminis-
tration will continue to have to endure criticisms that the reasoning reached
by courts is not as logical, consistent or as clearly principled as those offered
by Gordon. Doctrinal coherence, at the level to which Gordon aspired,
comes at a price that most are unwilling to pay: jurisdiction is only an
external constraint on power which does not allow courts to consider either
the manner in which administrative bodies make their decisions or the
quality of those decisions.
II. A Limited Concept of Jurisdictional Review
Gordon’s administrative law scholarship consisted of exposition and
analysis of the reasons courts gave to justify their review of decisions of
inferior tribunals and administrative bodies. Gordon was highly critical of
most of the reasons now accepted as justifications for judicial review. In-
tervention on the basis of violation of natural justice, consideration of ex-
traneous factors, lack of evidence, unreasonable findings or error in assessing
preliminary jurisdictional facts, were all unacceptable to Gordon. Moreover,
he was impatient with judicial rhetoric, now often associated with the Rule
of Law, which suggested that such flexible and expansive forms of review
were necessary if tribunals were not to be “autocratic”. 6 Gordon took issue
with such sentiments because he believed they clouded a proper under-
standing of legal principles and statutory language.
Gordon was attracted to what he believed was a conceptual coherence
inherent in the doctrine of jurisdictional review. He conceived jurisdiction
6Gordon repeatedly criticized the influential attempt of Farwell L.J. to equate expansive
notions of jurisdictional review with the very notion of limited power. Farwell had asserted:
No tribunal of inferior jurisdiction can by its own decision finally decide on the
question of the existence or extent of such jurisdiction: such question is always
subject to review by the High Court … it is a contradiction in terms to create a
tribunal with limited jurisdiction and unlimited power to determine such limit at
such a tribunal would be autocratic, not limited. [R.
its own will and pleasure –
v. Shoreditch Assessment Committee, [1910] 2 K.B. 859 (C.A.) at 880, quoted and
criticized in Gordon, “The Relation of Facts to Jurisdiction”, supra, note 2 at 473-
4.]
Gordon responded to Farwell’s rhetoric by commenting: “This antithesis of ‘autocratic’ and
‘limited’ tribunals seems neither very happy nor scientific.” [Gordon, ibid. at 474 n.61.]
1989]
D.M. GORDON’S SCHOLARSHIP
as the scope of authority to decide certain questions. The scope of authority
was absolutely divorced from questions about the manner in which those
questions had been answered, or from the merits of such decisions. Concepts
such as scope and manner had an inherent meaning for Gordon, part logical
and part semantic. For example, it was “a logical impossibility for the leg-
islature ever to create a procedural condition of jurisdiction in the true
sense”, in part because it would be
stultifying itself by talking nonsense and showing that it did not understand
the English language. It would be using the words ‘outside the scope of his
duties’ to mean no more than ‘contrary to his duty’ whereas they mean a great
deal more. 7
Such reasoning seems tautologous today, but for Gordon it was a recognition
of logical principles and coherent conceptual distinctions which should be
used to decide difficult questions.
The difference between a body operating with or without jurisdiction
was an absolute binary distinction according to Gordon. This distinction
left no room for questions of degree:
Jurisdiction must be an absolute conception …
If an essential is wanting,
jurisdiction is not defective; it simply does not exist. For it must exist in all
perfection, or not at all; a relative want of jurisdiction is nonsense.8
Gordon ridiculed concepts of “a sort of evanescent jurisdiction”, 9 in large
part because no bright line could define the point at which jurisdiction was
lost because of error or misdirection in the answering of assigned questions.10
7Gordon, Case Comment on Ohene Moore v. Akesseh Tayee (1935) 13 Can. Bar Rev. 523
at 528-9.
8Gordon, “The Observance of Law as a Condition of Jurisdiction” (1931) 47 L.Q. Rev. 386,
557 at 574. Gordon used the same absolutist reasoning to argue that a defect in jurisdiction
has “no intelligible meaning unless it denotes a partial want of jurisdiction, which only seems
to be possible when a tribunal deals with a subject-matter severable in its parts.” [Gordon,
Case Comment on Toronto Newspaper Guild v. Globe Printing Co. (1953) 31 Can. Bar Rev.
1158 at 1160.]
9Gordon, “The Relation of Facts to Jurisdiction”, supra, note 2 at 466.
‘0Gordon asked the following rhetorical question based on the assumption that bright lines
should emerge and bring a self-executing quality to legal concepts:
If jurisdiction, once accrued, can be taken away by evidence subsequently given,
at what stage will the ouster take effect? Will the first evidence against the essential
facts oust so thoroughly that further evidence the other way cannot be given? Or
will more affirmative evidence restore the lost jurisdiction? And what if neither
kind of evidence is conclusive? [Gordon, “The Relation of Facts to Jurisdiction”,
supra, note 2 at 476 n.75.]
Those who did not share Gordon’s assumptions about law being an exact science would not
be troubled by such questions.
Later in his career, Gordon backed away from this bright line argument that the taking of
evidence could not affect jurisdictional authority, and approved the Supreme Court’s finding
McGILL LAW JOURNAL
[Vol. 34
Either the findings of the tribunal matched the scope of the powers defined
in the statute or they did not. Jurisdiction was not defined as a sphere with
a centre, a periphery and a border, but rather a tightly bound area which
left no room for an “undistributed middle”.” Even the analogy of juris-
diction to an area of property could not force Gordon to admit courts had
to judge questions of degree on the borders. One step in any direction off
an undifferentiated area defining the scope of power made a tribunal a
trespasser. Gordon criticized all forms of judicial review which relied upon
qualitative distinctions, and he sought out self-executing principles which
would draw sharp lines of distinction.
Gordon’s understanding of jurisdictional review reflected his belief in
the objective nature of statutory interpretation and his belief in the ability
of words, when properly used, to delineate clearly the scope of a body’s
authority to make decisions. Words were capable of accurately and objec-
tively defining the scope of a tribunal’s power, and problems would only
arise from “vague and unscientific wording of statutes”.’ 2 Jurisdiction acted
as a metaphor for law to Gordon because it was definite and certain. Ju-
risdictional errors were objective in the sense that they did not depend on
any party being prejudiced and making objections; they only depended on
a violation of the grammar and logic of the words of the enabling statute.
Jurisdiction could be determined at the outset and apart from the manner
of its exercise because it involved only a matching of the objective definition
of powers in the enabling statute with the form and external shape, but not
the internal merits, of the answer the tribunal provided to the proper
question.
Gordon’s resistance to expansive forms ofjurisdictional review also can
be understood in the context of the importance of categorical reasoning to
his understanding of law. In Gordon’s mind, logical concepts were either
self-evidently distinct or completely merged. A true conceptual distinction
defined two mutually exclusive areas or it was no distinction at all, only an
unscientific, illogical and unhelpful “pseudo-conception”. 13 True concepts
of jurisdictional error in a Labour Board’s refusal of evidence. Nevertheless he continued to
worry that the decision might “set up a line of distinction between error and refusal of juris-
diction that is both hard to define precisely and hard to apply with certainty in practice.”
[Gordon, Case Comment on Toronto Newspaper Guild v. Globe Printing Co., supra, note 8 at
1162.] See also infra, note 57 and accompanying text, for a discussion of Gordon’s political
views.
“Gordon, “The Observance of Law as a Condition of Jurisdiction”, supra, note 8 at 398.
Indeed, Gordon explicitly stated that the “undistributed middle” was a “fallacy”. See infra,
note 19 and accompanying text.
12Gordon, “‘Administrative’ Tribunals and the Courts” (1933) 49 L.Q. Rev. 94, 419 at 100.
13Gordon, “The Relation of Facts to Jurisdiction”, supra, note 2 at 558.
1989]
D.M. GORDON’S SCHOLARSHIP
were “unmergeable”; 14 “pseudo-conceptions” inevitably merged and col-
lapsed into other concepts, at least when examined through the solvent of
Gordon’s reason. Qualitative differences within categories were not intel-
lectually powerful or legally relevant; “no difference in degree can be mag-
nified into a distinction in kind.”’15 If legal concepts were to be recognized
by judges and in turn were to guide them, such concepts had to be channelled
into definite categories. A principled claim to relief was a claim of a vested
right which existed both before and after the particular claim was decided:
“A complaint of injustice or unfairness had always to be brought into some
more definite category before a right to relief was established.”‘ 16 Categorical
reasoning, when used to prune and shape legal concepts, supported an un-
derstanding of adjudication as the recognition of pre-existing or vested
rights, and supported a professional claim that law was an objective science
which defined answers and left no room for choice or judgment.
An important aspect of Gordon’s categorical and dichotomous form of
reasoning was his belief that false concepts collapsed into each other. For
example, review based on errors in determining jurisdictional facts or vi-
olations of natural justice was not different in any principled or rational
way from the exercise of full appellate review. Similarly, only a “purely
arbitrary distinction” existed between review based on a failure to hear and
determine by law and review on the basis of any error. 7 Gordon refused
to recognize the restrained, result-oriented nature of jurisdictional review
because qualitative distinctions were, for him, the product of an inferior,
unscientific and unreliable form of reasoning dependent upon the subjective
and contingent judgment of the decision-maker. If judges were not guided
by clear self-executing principles they could be left only with subjective and
arbitrary choices.
In response to judicial “confessions” that the distinctions between ju-
risdictional and non-jurisdictional facts were often a matter of degree, Gor-
don bluntly commented: “This is a euphemistic way of saying that the
distinctions made are purely arbitrary.”18 Prudential reasoning leading to
judicial restraint in the use of jurisdictional fact review was based on “the
fallacy of the undistributed middle”.’ 9 The claim that jurisdictional fact
review was true law grounded in principle
141n another context which reveals his categorical form of reasoning, Gordon wrote of “the
oil and water of jurisdiction and procedure”. [Gordon, Case Comment on Ohene Moore v.
Akesseh Tayee, supra, note 7 at 529.]
15Gordon, Case Comment on McPherson v. McPherson (1936) 14 Can. Bar Rev. 157 at 158.
16Gordon, “The Observance of Law as a Condition of Jurisdiction”, supra, note 11 at 404.
7Ibid. at 585.
Iibid. at 388 n.7.
‘9lbid. at 398.
REVUE DE DROIT DE McGILL
[Vol. 34
had to rest on an intelligible dividing-line between findings or facts distin-
guished as ‘jurisdictional’ and others dealt with by the adjudication. No such
line has ever been found.20
The failure of such a form of review was confirmed by the scholar’s inability
to induce consistent principles from the cases: “One arbitrary distinction
cannot be precedent for another; it is the essence of arbitrariness that it
produces no principle. 21 Law for Gordon had the inherent ability to work
itself either pure or false; sometimes a little scholarly assistance was needed,
but true law could always produce principles which provided consistent and
coherent answers.22
Gordon favoured the use of the “reductio ad absurdum”2 3 to test the
logic and coherence of concepts. Gordon often drove his doctrinal argument
home by stretching what he considered to be weak judicial reasoning to its
logical conclusion. The concepts of both jurisdictional facts and natural
justice revealed themselves as “pseudo-conceptions” because when pushed
to their logical limits they could not produce bright boundaries to define
and limit their conceptual scope. No coherent test existed for determining
which facts were jurisdictional and which were not, so Gordon concluded
that the jurisdictional fact doctrine was really an assertion of full appellate
review. The extent of such appellate review was arbitrary because principles
did not define the limits of review. Likewise, natural justice revealed no
self-executing principles:
[T]he reductio ad absurdum of the ‘natural justice’ test … [shows] that once a
superintending court accepts the function of redressing injustice that is not
‘natural’, it cannot logically stop short of exercising appellate jurisdiction when-
ever any injustice has been suffered.24
20Gordon, “Conditional or Contingent Jurisdiction of Tribunals” (1960) 1 U.B.C.L. Rev. 185
at 217. Similarly, writing in 1929, Gordon noted than no principled basis existed or emerged
from the cases for defining what errors were reviewable as jurisdictional errors:
[Tlhe distinguishing between ‘major’ and ‘minor’ constituents of the subject-matter
before any tribunal cannot be other than a purely arbitrary process. It cannot be
put upon any logical or scientific basis. This is made only too clear by a survey of
the actual decisions on what questions are collateral or preliminary, for no intelligible
principle can be extracted from them. [Gordon, “The Relation of Facts to Juris-
diction”, supra, note 2 at 479.]
2’Gordon, Book Review (1960) 76 L.Q. Rev. 306 at 315. Likewise Gordon questioned: “Must
not any system of thought that has neither logic, consistency nor coherence bear within it the
seeds of its own dissolution?” [Ibid. at 311.]
22Dicey shared this faith as he praised the development of Equity into settled rules and even
optimistically observed the judicialization ofdroit administratifunder the influence of lawyers.
[Dicey, “DroitAdministratifin Modem French Law”, supra, note 3 at 316-17.] Gordon similarly
admired the “legalization” of Equity.
23Gordon, “The Observance of Law as a Condition of Jurisdiction”, supra, note 11 at 402.
241bid.
1989]
D.M. GORDON’S SCHOLARSHIP
In the absence of principles to define the exact scope of natural justice,
Gordon urged lawyers to accept “[t]he truth … that no one can define it
except by arbitrarily selecting certain injustices, and declaring them in-
fringements. ‘ 25 Once scientific lawyers recognized the arbitrariness of the
selection process of what was “fundamental”, “natural” or “preliminary”,
they would abandon such ad hoc and inconsistent concepts. Principled doc-
trine emerged as a logical mould which left no room for judicial expansion
or contraction for whatever reasons. Law was in its essence self-executing.
Gordon’s Hobbesian sense of the egoistic exercise of unbounded will
fueled his pessimism about reliance on human judgment. He always as-
sumed that litigants and even judges would push vague and false concepts
to the extreme, and that any sort of flexible reasoning left room for abuses.
Gordon’s assumptions about human nature may have led him to presume
that judges would engage in abuses, not in wisdom, restraint or deference,
and his epistemological framework led him to favour rights and boundaries
over considerations of the good, the prudent and the wise.
Gordon’s understanding of jurisdictional review will continue to seem
odd and artificial to those accustomed to conceiving of jurisdictional review
in functional and qualitative terms. Nevertheless, Gordon’s doctrinal ar-
guments can be better grasped in light of his understanding of statutory
interpretation and his use of categorical reasoning.
III. The Distinction Between Administrative and Judicial Functions
Gordon ambitiously offered a definition of judicial and administrative
functions at a time in the 1930s when increasing caution and scepticism
existed about the accuracy and utility of such a conceptual distinction.26
Gordon’s confident and categorical understanding of the distinction between
administrative and judicial functions is illustrated by his comments criti-
cizing a case in which certiorari was denied to review a decision of the
Quebec Workmen’s Compensation Commission on the grounds that the
25Ibid. at 403.
26Even the conservative Donoughmore Committee ventured only a distinction between ju-
dicial and quasi-judicial powers and warned “in practical politics an academic attempt to draw
the theoretical line maybe contrary to common sense.” [U.K., Committee on Ministers’ Powers,
Report (London: H.M.S.O., 1932 (reprinted 1956)) at 39 n.129.] Gordon chastised the Com-
mittee for drawing back from the needed task of elucidating principles and expounding defi-
nitions and promised that “if the true nature of the powers vaguely designated ‘administrative’
can be identified, the difficulty of distinguishing them will disappear.” [Gordon, “‘Adminis-
trative’ Tribunals and the Courts”, supra, note 12 at 96.] Gordon’s categorical form of reasoning
also led him to criticize the use of the term “quasi-judicial” in that it suggested that the
similarities between judicial and administrative functions were greater than the differences.
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Commission exercised administrative functions. 27 Gordon reasoned that
most provincial workers’ compensation schemes were administrative
because:
The workmen cannot say to the tribunal: You haven’t given me what I am
entitled to. For the tribunal can answer- You aren’t entitled to any particular
compensation, only to what we think we can afford to allow you. … A tribunal
that can so answer does not resemble a court of justice; it does not give the
workman what he can demand as of right, but only what it considers politic
and expedient to give him. … In the last analysis they have an arbitrary and
unfettered discretion, and follow their own will.28
In that particular case, however, Gordon concluded that the Quebec Com-
mission, unlike those in other provinces, exercised a judicial function be-
cause the legislation prescribed as compensation a fixed proportion of the
injured worker’s earnings. Gordon believed that such statutory standards
gave a worker a right to compensation:
[T]he whole scheme of compensation leaves nothing to the policy of the Com-
mission. … The awarding of compensation is purely a matter of ascertaining
the facts and making an arithmetical computation. When the computation is
wrong, the workman is deprived of what is legally his due.29
The analogy between judicial functions and mathematics was not acci-
dental.30 Law was very much like an arithmetical computation; both proc-
27A.G. Quebec v. Slanec (1933), 54 C.B.R. 230, [1933] 2 D.L.R. 289 (Que. KB.) [hereinafter
cited to C.B.R.]. The majority of the Court held that non-fault based systems of compensation
involved no rights and hence did not involve judicial functions. Dorion J. for example argued
at 250:
Je n’ai pas d’action en dommage si quelqu’un ne m’a pas caus6 injustement un
tort, n’a pas l6s6 mon droit. … les tribunaux ne sont pas institu6s pour cr6er des
droits, ni pour prononcer sur leur existence, A moins que cette existence meme soit
ni6e, ou attaqu6e; et encore faut-il qu’il r6sulte de cette n6gation une lesion
quelconque.
Gordon, of course, was relying on the D.L.R. translation [at 298]. Walsh J. similarly commented
at 256 [D.L.R. at 342.] that: “a legal question has become a social one of insurance”; and at
260-62 [D.L.R. at 346-47.] that it was no longer a question involving abstract rights.
Gordon was cited by Rivard J. in dissent at 269 [D.L.R. at 309.] as providing the basis for
such a distinction between judicial and administrative functions. Like Gordon, Rivard J.
concluded that the “fonction principale” of the Commission was judicial. In spite of the out-
come, all the judges seem to have implicitly accepted to some degree Gordon’s distinction
between administrative and judicial functions.
28Gordon, Case Comment on A.G. Quebec v. Slanec (1933) 11 Can. Bar Rev. 510 at 511.
29Ibid. at 511. Similarly, Rivard J., in holding that the Commission exercised a judicial
function, quoted Gordon: “When statute provides the standard by which a tribunal is to decide,
that tribunal acts judicially.”[Slanec, supra, note 27 at 275 [D.L.R. at 314.], citing Gordon,
‘Administrative’ Tribunals and the Courts”, supra, note 12 at 120.]
30Rule of Law thought often aspired to the precision of geometric science. See generally M.H.
Hoeflich, “Law and Geometry: Legal Science from Leibnez to Langdell” (1985) 30 Am. J.
Legal Hist. 95.
19891
D.M. GORDON’S SCHOLARSHIP
esses yielded definite and objectively demonstrable answers on the basis of
self-executing principles. The dichotomy between administrative discretion
and judicial adjudication, and the bright line boundary between the two
methods of decision-making, were central features in Gordon’s thought. 31
As his comments on Slanec graphically reveal, Gordon drew a sharp
line between judicial and administrative functions which left no room for
contextual, functional or institutional considerations. The Quebec Work-
men’s Compensation Commission was a judicial tribunal solely because it
had the “one essential quality” of deciding cases by the application of pre-
existing standards. 32 It did not matter that the Commission had “a dozen
unessential differences” from a court of law, and that other workers’ com-
pensation tribunals, performing the same functions without a prescribed
legislative tariff, were thought by Gordon to exercise administrative func-
tions. 33 Gordon even concluded that provincial appointments to the Quebec
Commission violated s. 96 of The Constitution Act, 1867.34 Gordon’s sense
of one essential feature defining the administrative or judicial nature of
governmental functions left no room for examining the body in its overall
political or institutional context. The manner in which decisions were made
was the only consideration which Gordon abstracted out of the mass of
political and institutional details. 35 Administrative decisions were the pro-
duct of arbitrary and subjective choice; judicial decisions were the product
of the discovery of objective and pre-existing standards.
31Gordon expressed very similar thoughts in criticizing a case which had held a London
County Council licencing resolution to be a judicial order. [Gordon, Case Comment on R. v.
London County Council (1932) 10 Can. Bar Rev. 198.] See infra, notes 40-44 and accompanying
text.
32Gordon, Case Comment on A.G. Quebec v. Slanec, supra, note 28 at 512.
33Ibid. Review was excluded by a privative clause, lawyers were not required, the Commission
was not bound by stare decisis, compensation did not depend on fault and the Commission
exercised departmental as well as adjudicative functions.
34(U.Kt), 30 & 31 Vict., c.3 (formerly British North America Act, 1867). Once again, Gordon
employed all or nothing reasoning that was blind to questions of degree: “Once a partial
encroachment on federal powers is countenanced, there is no saying where encroachments will
stop, and such legislation as the Quebec Workmen’s Compensation Act is only an opening
wedge.” [Ibid. at 515.] On the other hand, if Gordon thought a provincial tribunal or board
did not adjudicate rights, he saw no section 96 problems, and approved as “outstanding” the
decision in Labour Relations Board (Sask.) v. John East Iron Works Ltd, [1949] A.C. 134,
[1948] 2 W.W.R. 1055, [1949] 4 D.L.R. 673 (J.C.RC.) upholding provincial powers to appoint
a labour board. [Gordon, “Administrative Tribunals” (1964) 12 Chitty’s L. J. 92.]
35Gordon, “‘Administrative’ Tribunals and the Courts”, supra, note 12 at 113. An admin-
istrative tribunal exercised legislative functions even though it
may differ from Parliament in nine out of ten characteristics; yet it will still be a
legislative body if it possesses the one essential power, the power to make law, that
is, to create new legal rights and liabilities by its own acts and according to its own
will. [Ibid.]
14
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[Vol. 34
Gordon criticized judicial attempts to control discretion, and he be-
lieved that the exercise of discretion could not be restrained on grounds of
reasonableness or relevance. Thus an “inquiry into reasonableness must
always tend to become merely an inquiry whether the Court agrees with
the ‘administrative’ tribunal’s views.”‘ 36 As a firm adherent of Parliamentary
supremacy, Gordon recognized that statutes could force courts to hear ap-
peals from the discretionary decisions of administrative bodies, but he was
remarkably frank in admitting that an appellate court could “only apply in
turn its own ideas of policy and expediency … [and substitute] its own
legislation for the legislation below that displeases it.” 37 No standards or
lines defined what was reasonable or what considerations were relevant, and
in the absence of such self-defining guides, a reviewing court was free to
assert its own opinion and will. Gordon refused to recognize the qualitative
notion of a limited and deferential form of review that was not simply the
measure of the courts’ different opinions as to what was politic and expe-
dient. Partly because Gordon expected so much from law in its pure form,
he appeared willing to tolerate anything in the exercise of discretion.
Gordon defined judicial functions narrowly, largely because he refused
to recognize creative law-making as part of adjudication, and he refused to
inflate interests into rights. Judicial functions were only concerned with the
recognition of pre-existing rights and Gordon refused to label regulatory
activities judicial. Thus, they would not be subjected to a wider form of
review unless the person affected by the regulation could ex ante claim a
legal right in the result. Judicial bodies were limited to the recognition of
rights that already existed in standards and “[i]f a court were asked to take
away a legal right or impose a liability, it would be bound to disclaim
possession of the necessary power.” 38 In contrast, administrative bodies,
like Parliament, enjoyed the freedom of creating legal rights and never being
wrong.39
Gordon’s comments on licencing provide an application of his under-
standing of the difference between judicial and administrative functions.
Licencing was an administrative function because:
36Ibid. at 423. Likewise, in the absence of ascertainable legal standards, the question of the
relevancy of considerations was incoherent because:.’Extraneous’ considerations can only
mean considerations falling outside boundaries that are fixed and ascertainable; and policy
and expediency have no such boundaries.” [Ibid. at 424.]
37Ibid. at 115-16. Parliament could always give courts the difficult task of reviewing discretion,
but he warned: “No Court of law can depart from objective standards, in examining the
proceedings of inferior tribunals, without being led into a quagmire.” [Ibid. at 427.]
3 8Ibid. at 103. See also infra, note 40 and quotation in accompanying text.
39Gordon, “‘Administrative’ Tribunals and the Courts”, supra, note 12 at 117.
1989]
D.M. GORDON’S SCHOLARSHIP
no one can argue that the applicant for a licence has any right to it, he is
applying for a privilege. … [A] judicial tribunal does not create legal rights ….
It confers nothing, it merely gives effect to the pre-existing rights of the par-
ties. … Creation is not a judicial function.40
Gordon was a strict positivist in the sense that, in order to discover if vested
rights were involved in regulatory activities, he would look to the words of
the statute and not to his own understanding of what interests were valuable
and important. For example, he disagreed strongly with the reasoning in a
case in which a decision of the London County Council was reviewed by
means of certiorari on the grounds that the licencing of cinemas “affected
rights” by conferring a monopoly and thereby restricting the “rights” of
others to earn a livelihood. 4′ Gordon objected to stretching the definition
of rights and judicial functions in order to provide a remedy by way of
certiorari:
When the phrase ‘affects rights’ is used in a larger sense, as including the
conferring or creation of rights, it is no longer applicable to judicial orders. In
truth, an order that affects rights in the sense of conferring or creating them
has much more in common with legislative than with judicial functions. Such
orders are those commonly termed ‘administrative’. 42
Applicants for a licence could claim no right to a licence, they could only
hope to persuade the Council that it was “politic and expedient” to grant
them a licence. Gordon would not let concerns for property interests or
administrative injustice blur the conceptual clarity of the distinction be-
tween law and discretion. As in the case of his assessment of workers’
compensation schemes, Gordon seemed indifferent as to whether the leg-
islature simply granted discretion to those who administered legislation or
chose to vest rights for the benefit of those subject to the legislation.
The individuals affected by the exercise of administrative discretion
were analogized to those groups who lobby Parliament, not litigants who
claimed legal rights in a court of law. 43 Gordon was willing to pursue the
analogy of administrative functions to legislative functions even to the ex-
4OGordon expressed this thought even more tersely: “There is no question of legal right; an
applicant for a new licence has no rights.” [Gordon, Case Comment on R. v. London County
Council, supra, note 31 at 201.]
41R. v. London County Council, Exparte Entertainment Protection Association Ltd, [1931]
42Gordon, Case Comment on R. v. London County Council, supra, note 31 at 206.
431bid. at 204. Moreover, Gordon went on to oppose the false imposition of an adversarial
2 K.B. 215 at 233-34 per Scrutton L.J.; and at 243-44 per Slesser L.J.
private law model on the public and legislative nature of administration:
The tribunal is not really interested in the respective claims of the individuals, but
in the result to the public of granting what is asked. If a contest between the applicant
for, and opponent of, a theatre license were a lis inter partes, then equally the contest
between the applicant for and opponent of a private Act would be a lis inter partes.
[Ibid.]
16
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[Vol. 34
tent of recognizing and tolerating an inevitable form of bias in administra-
tive tribunals:
[S]uch tribunals are never strictly disinterested; they are always deciding be-
tween A and the public, yet themselves represent the public.44
Gordon was not imperialistic in imposing legal standards on administrative
tribunals, and it would have been difficult for him to squeeze the public
interest considerations he recognized in the exercise of administrative dis-
cretion into his Rule of Law vision of adjudication as the recognition of
pre-existing rights. In turn, Gordon did not speculate on what was required
by the public interest. Such speculations would necessarily be subjective
and arbitrary because no rights were at stake. As such, they did not lie in
the purview of the scientific lawyer.
Many of Gordon’s doctrinal arguments were based on a faith that courts
could adjudicate questions of law in a definite and objective manner. Ad-
judication could be frustrated by a “vague and unscientific” use of lan-
guage,45 but that did not mean that language properly used could not define
rights clearly and uncontroversially. In manipulating the pre-existing and
ascertainable standards of law to achieve just results in hard cases, a “sym-
pathetic” judge would in
helping one individual … [injure] a thousand by making the law uncertain.
[Such] arbitrary decisions have destroyed legal right and liability ad hoc; what
a would-be suitor is left is a gambler’s chance.46
Inherent in this critique was an understanding that law gave people vested
rights which could be claimed and recognized in court. Judicial recognition
of these legal rights was not a creative or subjective process. Gordon was
extremely hostile to result-oriented judicial review because it threatened the
stability and objectivity of his view of adjudication.
Not all decisions made by courts were the results of an objective form
of adjudication. Unless a set standard was established by law, judicial review
of discretionary decisions would only provide the reviewing court with the
“power to substitute its own arbitrary views for the inferior Court’s arbitrary
views.”’47 Gordon readily admitted that judges exercised an “arbitrary” dis-
cretion in determining the exact length of criminal sentences or the quantum
of damage awards. Given the categorical nature of his reasoning and his
“Gordon, “‘Administrative’ Tribunals and the Courts”, supra, note 12 at 434.
45Ibid. at 100.
46Gordon, Book Review, supra, note 21 at 314.
47Gordon, “Excess of Jurisdiction in Sentencing or Awarding Relief’ (1939) 55 L.Q. Rev.
521 at 523-4.
1989]
D.M. GORDON’S SCHOLARSHIP
rigorous standards for adjudication, it is not surprising that Gordon resisted
any attempt to impose standards on the exercise of discretion.
Gordon drew a sharp distinction between the objective and the sub-
jective. If no standards existed, a decision-maker could “only apply a sub-
jective standard, his own arbitrary opinion, his own policies and ideas of
expediency.” 48 In assessing the exercise of discretion, appeal to overriding
values was not a particularly honest or helpful manner of expressing
disagreement:
The complaint of unreasonableness can only be a complaint that the decision
has been given one way when it ought to have been given the other way.49
Complaints of unreasonableness were not powerful because in the absence
of standards, complainants had no rights to a certain result, and not even
rights not to have outrageously unreasonable results. An unresolvable dif-
ference of opinion existed and the subjective opinion of the administrative
body prevailed because the state had given it jurisdiction to determine the
particular question. Gordon’s idealistic vision of self-executing law was mir-
rored by his pessimistic vision of arbitrary discretion.
In conclusion, Gordon’s arguments about judicial review seem less
anomalous when examined in the context of his own understanding of law.
Gordon’s ideal understanding of adjudication as the recognition of pre-
existing rights and his penchant for categorical reasoning underlie his major
contributions to the doctrinal debate. Jurisdiction was a categorical and
bounded concept; courts had no tools to go inside jurisdiction to police the
reasonableness or merits of decisions. Likewise, courts could not intervene
in administrative determinations of the public interest in a principled fash-
ion because they could only recognize, not create, rights and liabilities. The
prospects for Gordon’s analogy between administrative and legislative func-
tions will be examined in the last part of this paper. First Gordon’s thought
can be better understood by comparing it to that of his contemporaries over
fifty years.
48Gordon, “‘Administrative’ Tribunals and the Courts”, supra, note 12 at 117. Subjective
power was in the last analysis unfettered discretion or following one’s own will. [Ibid. at 109-
10.] Once the boundary between the subjective and the objective was crossed, there was no
room for qualitative control of subjective discretion.
49Ibid. at 420 n.5. Similarly, Gordon wrote:
To say that a decision is unfair or arbitrary is simply to say that it is unjust; but if
this means merely that it is unethical, no Court of law can interfere. Courts of law
are not Courts of conscience. It is only if a decision is unjust in the sense of being
a denial of justice, i.e. a denial of legal rights, that a Court of law can even weigh
its deficiencies. [Ibid. at 441.]
REVUE DE DROIT DE McGILL
[Vol. 34
IV. Gordon and His Contemporaries
Writing in the 1930s, Gordon played the role of an expounder of the
law. As a result, his writings demonstrated no concern for historical context
or for the positions taken by other commentators. Principles, logic and
reason were timeless and required no debate with others once they were
revealed. Unlike Dicey, who wrote An Introduction to the Study of the Law
of the Constitution in 1885, Gordon felt no need to claim his territory for
lawyers, and to refute the claims of historians and philosophers. He shared
with Dicey the quest for scientific understanding and he envisioned his task
as the dispelling of superstition, but it was a testament to the success of
Rule of Law thought that he believed he need only address the last few
superstitions of lawyers. The legal focus of his work did not, however, stop
Gordon from borrowing many of the rhetorical techniques Dicey used in
his battle with the philosophers and historians. Both Dicey and Gordon
painted their opponents as sentimentalists who responded out of subjective
motives and did not push their thoughts into the objective realm of true
understanding and logic. Both thinkers also appealed to the concept of in-
evitable progress in the development and refinement of legal doctrine. 50
Gordon’s critical attitudes toward precedents may surprise those who
associate the Rule of Law’s “formalism” with a blind faith in stare decisis.
Such an equation ignores the radical reforming edge of the Rule of Law
vision created by Dicey and the other text-book writers who tried to justify
their academic enterprise to a sceptical profession. They believed they could
bring out the principles that lay beneath the decisions, but were often obscure
to the untrained eye. The clarification of the underlying principles would
make law more orderly and scientific. 51 In order to justify their role, Rule
of Law scholars had to bring a semblance of scientific order to the cases
and this often entailed rejection of the decisions which did not fit with the
50Gordon, for example, prefaced one of his major articles declaring: “The law, like other
sciences, has had its superstitions which, after flourishing openly for generations, or more
discreetly for centuries, have at last been seen for what they are and been utterly discredited.”
[Gordon, “The Observance of Law as a Condition of Jurisdiction,” supra, note 11 at 387.]
51A good example of a tactful Gordon trying to persuade the profession that his theories
were supported by at least the bulk of authority is found in one of his earlier articles, on error
of fact. Gordon argued:
[E]rror in fact has always been perceived, though through a glass, darkly. To recognize
it officially now is not to change the law, but to restore and rationalize it. If a correct
and logical explanation of a settled practice is available, it is unthinkable that the
Courts must continue to account for it by theories obviously false and illogical.
[Gordon, “Certiorari and the Revival of Error in Fact” (1926) 42 L.Q. Rev. 521 at
526.]
Gordon, like other Rule of Law scholars, could present his reforming enterprise through the
rhetoric of both science and conservatism.
1989]
D.M. GORDON’S SCHOLARSHIP
over-arching principles. 52 This radical reforming edge was tempered by the
need to respect the profession and the courts. Gordon, writing in the 1930s
and later, could afford to venture more overtly critical assessments ofjudicial
decisions and to speculate more openly about judicial motiviations than
many of the earlier Rule of Law scholars. Writing at the dawn of the realist
movement, Gordon could even, at times, resemble a “trasher”. In his first
major article on jurisdiction Gordon bluntly noted that “there is virtually
no proposition so preposterous that some show of authority to support it
cannot be found, ‘ 53 and he did not hesitate to catalogue inconsistent rulings
for pages on end. Gordon’s biting criticisms were, however, always directed
to the goal of improving and rationalizing legal doctrine by making it in-
ternally consistent, and he did not believe that law must direct itself outward
to society in order to be reformed.
Law and politics were sharply distinguished in Gordon’s mind and he
believed that political considerations could not be regulated or bounded by
law. Likewise Dicey, writing in 1915, seemed worn down enough to give
much ground to the administrative state by simply labelling it “politics”
and “business”. 54 For both thinkers, once the line of law was passed, nothing
remained but will and power. Just as ordinary law in ordinary courts was
the same for public and private actors, unrestrained power and will was the
same whether exercised by the state or by private actors.
Gordon’s work demonstrated none of the self-conscious understanding
of historical development that was the foundation of Dicey’s understanding
of the rise of collectivism or the development of droit administratif55 Gor-
don’s understanding of judicial attitudes was fundamentally ahistorical and
52See generally Sugarman, “Legal Theory, The Common Law Mind and the Making of the
Textbook Tradition” in W. Twining, ed., supra, note 1.
53Gordon, “The Relation of Facts to Jurisdiction”, supra, note 2 at 459.
54Dicey mourned the demise of the Rule of Law and suggested it may be beyond redemption:
[W]e must remember that when the State undertakes the management of business
properly so called, and business which hitherto has been carried on by each indi-
vidual citizen simply with a view to his own interest, the Government… will be
found to need that freedom of action necessarily possessed by every private person
in the management of his own personal concerns. …. The management of business,
in short, is not the same thing as the conduct of a trial. The two things must in
many respects be governed by totally different rules. [Dicey, “The Development of
Administrative Law in England” (1915) 31 L.Q. Rev. 148 at 150 (emphasis added).]
55See generally Dicey, Lectures on the Relation Between Law and Public Opinion in England
During the Nineteenth Century, supra, note 5; and An Introduction to the Study of the Law of
the Constitution, 10th ed. (London: MacMillan, 1965) Chapter 12.
McGILL LAW JOURNAL
[Vol. 34
apolitical. 56 Legal doctrine, even with its errors and fallacies, was an au-
tonomous discourse which was determined by and judged on the sole ground
of its internal logic. Gordon did not recognize boards or tribunals as a
functional category; such bodies were more often than not lumped into the
juristic category of inferior bodies with summary conviction courts, justices
of the peace and ecclesiastical courts. Later in his career Gordon allowed
his politics to show on the edges and, interestingly, they were as individu-
alistic and opposed to collectivism as those of Dicey.5 7 Nevertheless, these
56Gordon’s criticisms of intervention on the basis of error in the determination ofjurisdic-
tional facts were profoundly ahistorical. In one article he cited three cases as examples of abuse
of that doctrine. The cases were decided in 1853, 1926 and 1686. [Gordon, “Jurisdictional
Fact: An Answer” (1966) 82 L.Q. Rev. 515 at 518.] Gordon seemed more concerned with the
hostility the courts had once displayed towards ecclesiastical courts than with any hostility
towards administrative bodies. [Gordon, “The Observance of Law as a Condition of Juris-
diction”, supra, note 11 at 393; “Certiorari to an Ecclesiastical Court” (1947) 63 L.Q. Rev.
208.]
571 n 1951, he criticized a judicial refusal to review a decision to withdraw a cab-driver’s
licence by arguing:
Even if being subject to review could be looked on as some slight hardship on a
Commissioner, how could this be compared to what cab-drivers might suffer if the
Divisional Court was right –
if the regulations let drivers have their livelihood
taken from them by ex parte decisions, decisions even based on hearsay? [Gordon,
“The Cab-Driver’s Licence Case” (1951) 70 L.Q. Rev. 203 at 213.]
Earlier in his career he had resisted arguing that judicial evidentiary standards should be
imposed on regulators making discretionary decisions. [Gordon, “‘Administrative’ Tribunals
and the Courts”, supra, note 12 at 430.]
Gordon even departed from his beloved notion of absolute jurisdiction to provide some
support for the Supreme Court’s controversial Globe union membership card decision by con-
templating the loss of jurisdiction after a tribunal had begun to address the question entrusted
to it. [Toronto Newspaper Guild v. Globe Printing Co., [1953] 2 S.C.R. 18.] Even in justifying
the court’s interference with the Labour Board’s determination of membership, Gordon con-
cerned himself with finding “an intelligible dividing line” and a “line of distinction” between
mere error and refusal ofjurisdiction. [Gordon, Case Comment on Toronto Newspaper Guild
v. Globe Printing Co., supra, note 8 at 1162.] He stated:
[N]o past discussions on the dividing line have been very illuminating. Yet it does
not seem an impossible task to find a way of parting the sheep from the goats, even
if practical application of the best test that can be evolved must always present
some difficulty. [Ibid.]
In 1965, Gordon resembled Dicey as he opposed the House of Lords expansion of liability
in Hedley Byrne v. Heller, [1964] A.C. 465, [1963] 3 W.L.R. 101, [1963] 2 All E.R. 575 on the
grounds that it represented a “welfare state mentality”. He insisted that consideration and
privity of contract were “most in harmony with the individualistic spirit of the common law
before the day of the welfare state.” [Gordon, “Hedley Byrne v. Heller in the House of Lords”
(1965) 2 U.B.C.L. Rev. 113 at 155-6.] Even in the midst of this political fancy, Gordon still
expressed his faith in the divide between law and politics by quoting with favour Lord Jowitt,
L.C. at 157: “I do most humbly suggest … that the problem is not to consider what social
and political conditions of today require; that is to confuse the task of the lawyer with the task
of the legislator.” Similarly, in 1961, Gordon characterized the primary intent of the Canadian
Bill of Rights to be the prevention of “the possibility of a communist (or even a socialist)
1989]
D.M. GORDON’S SCHOLARSHIP
comments are indiscreet anomalies in Gordon’s writing, and the bulk of his
contribution remained apolitically conceptual in both intent and execution.
Jurisdiction was a crucial tenet in Dicey’s conception of the Rule of
Law because it provided the means for the ordinary courts to determine as
a matter of regular law whether officials had exceeded the extent of their
legal authority.58 Gordon assumed courts could enforce objective limits of
power, but he concerned himself with the methods by which the ordinary
courts determined these limits. Law as objective limits was taken to its
logical extension, turned in on itself, and applied to the method by which
the courts decided to intervene. Gordon stressed the more formal concern
with the rigour of the methods used by courts to discover and locate the
exact position of the limits of power and not Dicey’s libertarian celebration
of the very existence of ajudicial process to limit state power.59 For example,
Gordon, unlike Dicey, did not take comfort in predictions that
it is probable that in some form or other the English courts will always find
the means for correcting the injustice, if demonstrated, of any exercise by a
Government department of judicial or quasi-judicial authority.60
Gordon took form even more seriously than Dicey did, and he could not
sanction haphazard intervention to relieve injustice based on only what
Dicey believed were the praiseworthy “feelings of magistrates”. 61 Gordon
really tried to be a scientific lawyer, not a partisan of the High Court.62
government’s coming into power.” [Gordon, “The Canadian Bill of Rights” (1961) 4 Can. Bar
J. 431.] Despite his revival of red scare rhetoric, Gordon was most concerned that the “vague”,
“abstract” and “unworkable” concepts of a bill of rights would disrupt orderly evolution of
law into a science explained by a few principles. Likewise, Gordon was uncomfortable with
the conceptual justification for the Supreme Court’s civil libertarian intervention in the ad-
ministrative process in Smith and Rhuland Ltd v. R., [1953] 2 S.C.R. 95. [Gordon, Case
Comment (1954) Can. Bar Rev. 85.]
58Dicey, An Introduction to the Study of the Law of the Constitution, supra, note 55 at 389;
“Droit Administratif in Modern French Law”, supra, note 3 at 305; “The Development of
Administrative Law in England”, supra, note 54 at 151.
59Dicey wrote:
Powers, however extraordinary, which are conferred or sanctioned by statute, are
never really unlimited, for they are confined by the words of the Act itself, and,
what is more, by the interpretation put upon the statute by the judges. [Dicey, An
Introduction to the Study of the Law of the Constitution, supra, note 55 at 413
(emphasis added).]
phasis added).
60Dicey, “The Development of Administrative Law in England”, supra, note 54 at 151 (em-
61Dicey, An Introduction to the Study of the Law of the Constitution, supra, note 55 at 413.
620n this aspect of Dicey’s thought, see generally, H. Arthurs, “Rethinking Administrative
Law: A Slightly Dicey Business” (1979) 17 Osgoode Hall L.J. 1 at 6ff.
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The ideological link between Dicey and J.C. McRuer has been recog-
nized.63 Thus, it is not surprising that many of the differences between
McRuer and Gordon track the differences between Dicey and Gordon.
McRuer, writing his Inquiry into Civil Rights in the late 1960s championed
jurisdictional review of preliminary and collateral facts, not only on the
basis of precedent, but also as “desirable safeguards against the arbitrary
exercise of the powers” of administrative bodies. 64 Functionalist defences
of a more restrained form of review were dismissed with the anti-statist
rhetoric associated with Dicey.65 McRuer recognized the imprecise nature
of jurisdictional fact review, but was willing to tolerate doctrinal ambiguity
for the sake of asserting the power of ordinary courts. Unlike Gordon, who
was willing to admit that a court’s opinion as to the existence of a preliminary
or collateral fact was not inherently better than the opinion of an inferior
body and that the legislature had preferred the opinion of the inferior body
through the grant of jurisdiction, McRuer simply argued that the ordinary
court could “objectively” determine preliminary or collateral facts. 66 Gor-
don’s sense of the subjective nature of fact determination, 67 as well as his
refusal to paper over what he saw as logical inconsistencies in jurisdictional
fact review and to rely on misplaced rhetoric about the need for ordinary
courts to supervise administrative bodies, helps to explain his parting of
doctrinal ways with McRuer. Nevertheless, it should not be assumed that
Gordon’s subjectivism about fact determination eroded his faith in the ob-
jective nature of law, properly conceived and executed. In Gordon’s Rule
of Law vision, facts could be subjective while law was objective. Moreover,
while McRuer could only postulate a theoretical and ideal dichotomy be-
tween adjudicative recognition of pre-existing rights and legislative policy-
making, Gordon actually believed this was the way legal systems should
and could operate. In short, McRuer and Dicey shared a faith in the ordinary
courts, but Gordon’s faith in the ordinary courts truly depended on the
possibility of an objective science of law.
63See Arthurs, ibid.; and J. Willis, “The McRuer Report: Lawyers’ Values and Civil Servants’
Values” (1968) 18 U.T.L.J. 351.
Printer, 1968) Report 1, vol. 1 at 76.
64J.C. McRuer, Ontario, Royal Commission Inquiry into Civil Rights (Toronto: Queen’s
65McRuer, for example, denied that findings of preliminary or collateral matters required
expertise, but argued that even if they did, then “independence of judgment divorced from
departmental atmosphere is of much greater importance as a safeguard of rights than any
benefits that might be derived from expertise.” [Ibid. at 306.]
661bid. at 252.
67The distinction between the objectivity of law and the subjectivity of facts was a crucial
element of the Rule of Law vision. Gordon, for example, noted: “a judicial tribunal does not
have contact with facts, but only with allegations.” [Gordon, “Conditional or Contingent Ju-
risdiction of Tribunals”, supra, note 20 at 207.]
1989]
D.M. GORDON’S SCHOLARSHIP
Dicey and McRuer differed from Gordon primarily in their champi-
oning of judicial review, even at the cost of conceptual clarity, but other of
Gordon’s contemporaries more deeply challenged his very understanding
of law. Gordon believed that all the components of a sound jurisprudence
were within the semantic and logical puzzle that was the case and statute
law, whereas the realists believed a correct reading of the social record and
the adoption of new functional approaches to law were required. 68 Gordon
believed that correct answers to questions of statutory interpretation could
be produced by a more exact use of language. For example, jurisdiction had
a “strict, technical meaning” which would yield definitive interpretations
if judges would only desist from “abuse of language” by using the word in
its “loose popular sense”. 69 Logical fallacies in conceptual thinking would
be exposed if it were not for the use of vague language. 70 Gordon promised
that the careful use of words and the logical understanding of principles
could provide “reasonably certain answers … for most of the problems that
have been perplexing the Courts.”‘ 71 Despite his sometimes vituperative
criticisms of inconsistencies and fallacies in judicial reasoning, Gordon be-
lieved that even the recalcitrant law of judicial review could be perfected
by proper attention to language and principles.
As Gordon wrote in the 1930s, his attitudes about language and ad-
judication and its autonomy and objective nature were rejected by academ-
ics influenced by the sociological jurisprudence and realist movements. The
sociological jurisprudence movement first attacked the Rule of Law vision
for its “slot machine” jurisprudence which ignored context and conse-
68Gordon maintained that “all necessary materials for a sane, coherent and self-consistent
theory of jurisdiction already exist; they only need piecing together.” [Gordon, “The Relation
of Facts to Jurisdiction”, supra, note 2 at 460.]
69Gordon, Case Comment on Ohene Moore v. Akesseh Tayee, supra, note 7 at 523. Gordon
criticized Parliament for its loose use of language as did the great Rule of Law scholar Sir
Frederick Pollock. [Pollock, Editorial Comment (1915) 31 L.Q. Rev. 153.]
70Gordon, “The Observance of Law as a Condition of Jurisdiction”, supra, note 11 at 386.
Gordon observed “equivocal or elliptical language in statutes can leave uncertainty whether
powers are judicial or ‘administrative’. However good a test is available, this cannot overcome
uncertainty as to what Parliament means.” [Gordon, “‘Administrative’ Tribunals and the
Courts”, supra, note 12 at 116-17.] Likewise, in the crucial area ofjurisdiction Gordon criticized
the casual and unscientific wording of legislation that creates a new jurisdiction.
Instead of first creating an area of judicial power and then prescribing how it shall
be exercised, the Legislature often devotes its whole attention to the manner, leaving
the power itself a mere matter of inference. [Gordon,”The Observance of Law as
a Condition of Jurisdiction”, supra, note It at 569.]
Inherent in this criticism was a faith that the Legislature could use language to define the nature
of the power exercised and to prescribe the scope of authority in a definite and self-evident
manner. Thus major inroads into the two main problems of administrative law that captured
Gordon’s concern could, in large part, be achieved through a better use of language.
71Gordon, “‘Administrative’ Tribunals and the Courts,” supra, note 12 at 419.
McGILL LAW JOURNAL
[Vol. 34
quences. Writing in the late 1920s, Harvard professor John Dickinson tried
to deal with many of the problems Gordon battled with, but after studying
with Pound and Frankfurter,72 he did not have the same faith in the objective
nature of adjudication as Gordon did. Dickinson, felt compelled to take a
“more realistic view of the nature of legal concepts”:
They are not spatial entities having the independent and inexorable existence
of physical objects and excluding each in all dimensions. Properly regarded,
they are seen to be capable of overlapping and intersecting and interpene-
trating. … The variety of possible classifications is as infinite as the infinite
numbers of purpose for which classifications can be made.73
Gordon, in contrast, saw the concept of jurisdiction as a vacuum-sealed
boundary that left no room for qualitative judgments or for tailoring to
social purposes. Merits and purposes did not matter as long as the conclusion
announced by the tribunal interlocked with the scope of authority objec-
tively defined in the enabling statute. Dickinson noted that the jurisdictional
fact doctrine was not applied logically and left an inconsistent trail of cases,
but unlike Gordon recognized that this quality could serve useful purposes
in preventing occasional administrative injustices.74 Gordon’s criticisms of
the inconsistencies in the doctrine were not compelling because for Dick-
inson law was “something other than a logical game where counters are
manipulated to achieve formal symmetry… .75 Law was not “a closed
mathematical system of rigid concepts but a developing organic system of
72Dickinson dedicated his major work, Administrative Justice and the Supremacy of Law in
the United States, infra, note 74, to Pound and Frankfurter, his mentors at Harvard.
73J. Dickinson, Administrative Justice and the Supremacy of Law in the United States (Cam-
bridge, Mass.: Harvard University Press, 1927) at 134-36. The writings of Dickinson made it
clear that it would be a mistake to believe the Realists offered the first real challenge to the
Rule of Law vision. A Canadian commentator, Nigel Tenant, writing in 1928, challenged the
Rule of Law vision with sociological and functional theories of administrative law. Influenced
by American scholars, Tenant, saw the importance of expertise and questioned the airtight and
self-defining nature of legal categories such as the distinction between law and fact. [N. Tenant,
“Administrative Finality” (1928) 6 Can. Bar Rev. 497 at 509.]
74Dickinson, ibid. at 309ff. Dickinson argued that jurisdictional fact review was only “nom-
inally… [the] result of construing the statute but ultimately, of course as a result of applying
[the court’s] view of sound public policy.” With a realistic flourish, he later argued that the
decision to hold facts jurisdictional was result-oriented and depended on the court’s “sympathy
with the administrative method of regulating the subject matter dealt with.” [Dickinson, “Crow-
ellv. Benson: Judicial Review of Administrative Determinations of Questions of ‘Constitutional
Fact’
(1932) 80 U. Penn. L. Rev. 1055 at 1064.]
75Dickinson, Administrative Justice and the Supremacy of Law in the United States, supra,
note 74 at 336.
1989]
D.M. GORDON’S SCHOLARSHIP
concepts, more or less elastic.”’76 Dickinson at once expected less from law
in terms of internal logic, but more from it in terms of social purpose.
The rhetorical success Gordon achieved by maintaining the imprimatur
of objectivity and logic is well illustrated by a disagreement that he had
with Caesar Wright in the 1936 issue of the Canadian Bar Review. Gordon
wrote a case comment suggesting that a tribunal could not lose jurisdiction
“however erroneous, irregular or censurable its procedure may have been. ’77
In a style characteristic of Dicey, Gordon revelled in the fact that he was
expounding “a fairly obvious conclusion, procedure and jurisdiction are
two quite separate things. 78 He confidently argued that from the standpoint
of logic, there was nothing to be said on the other side. Wright, in a reply,
felt compelled to defend an Ontario case79 in which the limited view of
jurisdictional error enunciated by the Privy Council in Nat Bell80 and es-
poused by Gordon was distinguished, in order to hold that a police mag-
istrate had lost jurisdiction by convicting an unrepresented accused of a
liquor offence under The Indian Act without hearing any evidence. Wright
admitted that he saw much in the logic of Gordon’s reasoning that juris-
diction was definitely assumed at the start of the hearing because the tribunal
had undisputed power to decide guilt or innocence with regard to this of-
fence. Likewise, Wright was concerned that the distinction that the judge
had used to review the unfair decision in Re Nelson8′ was not a bright line
and the phrases used might even be “futile as guides for future decisions”.8 2
Despite these concessions to Gordon’s argument, Wright defended the
court’s intervention in the case while apologetically admitting that he
76Ibid. at 121. Pound, likewise, spoke disparagingly of “[a] tendency to logical analytical
precision and classification and to rigid definition” in the nineteenth century. [R. Pound,
Administrative Law, Its Growth, Procedure, and Significance (Pittsburgh: University of Pitts-
burgh Press, 1942) at 96.]
77Gordon, Case Comment on McPherson v. McPherson, supra, note 15 at 157.
78Ibid.
79Re Nelson, [1936] O.R. 31. McTague J. had appealed at 32-33 to factors that Gordon would
have dismissed as imprecise, unscientific and sentimental: “To hold that in such circumstances
the Magistrate had jurisdiction would offend all the principles of natural justice.” Gordon later
wrote that McTague’s decision was “altogether wrong and illogical … clearly untenable and
against authority.” [Gordon, Case Comment on Re Nelson (1936) 14 Can. Bar Rev. 262.]
80R. v. Nat Bell Liquors Ltd, [1922] 2 A.C. 128, 65 D.L.R. 1, [1922] 2 W.W.R. 30, 37 C.C.C.
129 (J.C.P.C.).
8 Interestingly, counsel for the police magistrate, then J.C. McRuer K.C., made an argument
very similar to the one Gordon articulated. Later in his career McRuer would defend a more
expansive understanding of jurisdictional error, but as an advocate he embraced the logic of
Gordon’s arguments.
82C. Wright, Editorial Comment (1936) 14 Can. Bar Rev. at 159.
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[Vol. 34
must confess to a feeling that the conclusion reached in Re Nelson is a highly
desirable one, although he is willing to admit that this may be due more to an
inarticulate sympathy than to any logically satisfactory proposition.8 3
Wright still had a professional respect for both the conceptual and practical
elements of Gordon’s argument in favour of definite, objective and self-
executing concepts. 84 It was a testament to the continued intellectual hold
of Rule of Law thought that Wright felt compelled to make a “confession”
about “feelings”, “an inarticulate sympathy” and the lack of “any logically
satisfactory proposition” to refute Gordon’s argument. It was also an in-
dication that many influenced by sociological and realist scholarship ex-
pected more from law than its internal qualities. Wright’s apologetic and
hesitant approach, however, suggests that many lawyers were not comfort-
able in expressing the extra demands placed on law in language that went
beyond appeals to enlightened and interstitially exercised discretion.
Although Wright departed from the logical and conceptual reasoning
embraced by Gordon only apologetically and with some reluctance, other
Canadian scholars offered a more direct and powerful critique of Gordon’s
approach. John Willis disparaged theoretical categories and conceptual rea-
soning; he argued that courts should concern themselves with questions of
degree on the basis of particular circumstances. 85 Willis, like Frank Scott,
believed conceptual reasoning obscured the importance of the attitudes and
policy orientations which influenced the inevitable choice of which concepts
to embrace in hard cases.8 6
Jacob Finkelman, like Willis, directly challenged the internal logic of
Gordon’s thought by arguing that “the strong demands of social functionings
83Ibid.
8On Wright, see generally R.C.B. Risk, “Volume I of the Journal: A Tribute and a Belated
Review” (1987) 37 U.T.L.J. 193 at 196-8; and C.I. Kyer & J.E. Bickenbach, The Fiercest Debate:
Cecil A. Wright, the Benchers, and Legal Education in Ontario 1923-1957 (Toronto: Osgoode
Society, 1987).
85J. Willis, “Three Approaches to Administrative Law: The Judicial, the Conceptual, and
the Functional” (1935) 1 U.T.L.J. 53.
86Scott and Gordon disagreed about the role of judges in adjudication. In 1947, Gordon
criticized the Privy Council’s decision on the abolition of Canadian appeals to it on the ground
that the Lordships had been forced to take “positions that are logically untenable and to assign
meaning to language that it cannot bear.” [Gordon, Part I, “Abolition of Appeals to the Privy
Council: A Symposium” (1947) 25 Can. Bar Rev. 557 at 558. In reply, Scott argued in the same
symposium that a
judge-interpreter cannot escape the role of statesman, however much he may try
to cling to the letter of the law. There are few cases in courts of appeal so clear that
an alternative decision is not possible, and where there is a choice of constitutional
alternatives there is necessary a choice also of political ends. [ER. Scott, Part III,
ibid. at 566.]
19891
D.M. GORDON’S SCHOLARSHIP
bite into the over-simple or over-rigid concepts however hallowed. ‘ 87 “Logic
delights in categories and differentiations; experience is a guide which is
unconscious of them and provides life with working principles.” 88 Finkel-
man recognized that Gordon’s reasoning made the work of a judge less
problematic and value-ladened, but warned that “logic must be robbed of
its symmetrical beauty and childlike simplicity” 89 if law was to be a socially
responsive force. Finkelman thus disparaged the qualities of reasoning that
Gordon identified as the essence of law.
Finkelman was less radical than Willis in that he was more willing to
envisage a greater role for ad hoc judicial intervention. Finkelman argued:
It is better for law, in serving the ends of society, to allow as much freedom
as possible to the judiciary in controlling ‘administrative’ action, to take the
risk of confused judgments, of ‘distinguishings’, of ‘distinctions’, rather than
to cabin and confine the discretion of the judges.90
Both Willis and Gordon would have been somewhat uneasy, but for very
different reasons, with Finkelman’s advocacy of a loose ad hoc form of
judicial review. Gordon, of course, viewed such uncategorized forms of
review as the antithesis of law and a betrayal of its promise of scientific
objectivity. Willis, on the other hand, viewed the policy dispositions and
“ideal constitutions” of judges with enough suspicion to have his doubts
about sanctioning even selective review. Finkelman wanted to keep review
fluid and he may have hoped, like Wright, that courts would continue to
vindicate his “inarticulate sympathies”. In turn, Gordon did not want sym-
pathy of any kind while Willis feared sympathies of the wrong kind.
Despite their very different approaches to the law, John Willis could
not have criticized Gordon for adopting an overt prejudice against admin-
istrative activity associated with Lord Hewart and other conservative law-
313 at 321.
87J. Finkelman, “Separation of Powers: A Study in Administrative Law” (1930) 1 U.T.L.J.
8sIbid. at 313.
89Ibid.
9Ibid. at 342. Finkelman’s approach was similar to that of the American scholar John Landis.
Landis was concerned that the policy and efficiency of administrative agencies would be threat-
ened by jurisdictional review which constituted trial de novo on technical and complex ques-
tions. Furthermore, he feared delay would be created and courts would decide crucial questions
without the expertise of the agencies. [J.M. Landis, The Administrative Process (New Haven:
Yale University Press, 1938) at 142.] Landis was content with a functionalist, contextual ad
hoc approach to review which “affords no definite answers”. [Ibid. at 153.] Gordon, in contrast,
always promised definite answers because his Rule of Law reasoning was aimed at determining
sharp conceptual boundaries and not at evaluating policies, institutional competence or pre-
venting administrative injustices.
28
McGILL LAW JOURNAL
[Vol. 34
yers; 91 he even willingly made use of Gordon’s argument that procedural
errors could not deprive a tribunal of jurisdiction. 92 Although Willis saw
administrative law in a social and political context which Gordon ignored,
it is significant that when he was most pessimistic about the prospects for
the reform of legal reasoning, he adopted an external perspective to judicial
review which limited judicial intervention in a manner fairly similar to that
of Gordon.
Gordon and Willis were unlikely allies in their opposition to the fairly
formalized and structured form of review proposed by the influential Com-
mittee on Ministers’ Powers. Reporting in 1932, the Committee on Min-
isters’ Powers had lost faith in ever returning review by way of the
prerogative writs to their proper principles. Instead, the Committee pro-
posed allowing appeals from quasi-judicial decisions which were either un-
fair or embraced extraneous considerations. 93 Gordon opposed such review
of administrative decisions by reference to his ideal vision of courts recog-
nizing pre-existing rights and his reluctance at having the High Court assume
the “alien” and “arbitrary” function of second guessing the legislative opin-
ions of administrative tribunals. 94 Willis also agreed that the courts were
not competent to entertain such questions. Willis’ concerns about judicial
competence were based, however, on the inability of courts to advance social
policies with the same skill as the experts in the bureaucracy, and not on
the abstract ideal of adjudication embraced by Gordon.95 Motivated by these
very different concerns both Willis and Gordon recognized that even for-
malized appeals from administrative decisions would force the courts to
deal with matters of policy for which they were ill-suited.9 6 Those passion-
91As such, Gordon does not fit into the pattern observed by Frank Scott of a
marked difference of approach in reports and addresses of judges and practising
lawyers from that adopted by the teachers and scholars. The former tend to stress
the dangers to liberty that lie in the administrative tribunals, the latter emphasize
the importance of the new functions of the state and the need for procedures swifter
and more expert than those followed in the regular courts of law. [ER. Scott, “Ad-
ministrative Law: 1923-47” (1948) 42 Can. Bar Rev. 268 at 270.]
Gordon ignored both the issues of liberty and expertise and concentrated on conceptual clarity.
92Willis, “Three Approaches to Administrative Law”, supra, note 85 at 66-67.
93U.K., Committee on Ministers’ Powers, Report, supra, note 26 at 117.
94Gordon, “‘Administrative’ Tribunals and the Courts”, supra, note 12 at 442.
95Willis, “Three Approaches to Administrative Law”, supra, note 85 at 69-74.
96Willis feared from a policy perspective that:
[Q]uestions of law are very difficult to distinguish from questions of fact, and to
invite a court to rule upon questions of law is to invite them to take upon themselves
the consideration of administrative policy of which they have no experience. [Ibid.
at 79.]
On the other hand, Gordon expressed concerns from an adjudicative perspective:
To say that a decision is unfair or arbitrary is simply to say it is unjust. … It is
only if a decision is unjust in the sense of being a denial of justice, i.e. a denial of
1989]
D.M. GORDON’S SCHOLARSHIP
ately concerned with either adjudication or social welfare doubted the courts’
ability to supervise administrative discretion, and could adopt a perspective
on law as external limits safely apart from the administrative exercise of
what, for Willis, was enlightened policy and, for Gordon, arbitrary will.
Attempts to reimpose a conceptual approach to jurisdictional review
after the 1930s could not embrace Gordon’s vision of adjudication as a
logical science of self-executing principles. Writing a treatise in the early
1960s, Amnon Rubinstein shared Gordon’s text-book ambition of bringing
doctrinal clarity to jurisdictional review. 97 He agreed that courts and scholars
should concern themselves with the definition of the “dividing line between
the jurisdictional and non-jurisdictional” and hopefully contemplated de-
fining “the gateway through which the tribunal must pass before reaching
the safe grounds of his jurisdictional sphere and the shelter of his ‘privilege
to err’.” 98 Unlike Gordon, however, Rubinstein concluded that such defi-
nitions could only be the result of a compromise reached between the con-
sequences of the possible choices judges had to make. Legal concepts
embodied conflicting policy choices. Gordon recognized that Rubinstein
shared his ambition to rationalize the law, but criticized him for vagueness
about whether supervising courts should consider whether a tribunal had
erred in determining the actual existence of a jurisdictional fact or only in
evaluating the reasonableness of the evidence available to it. 99 In the end,
Gordon was more unsympathetic to Rubinstein’s attempts to recognize and
integrate the tension of purposes in the doctrine of jurisdictional review 00
than he was to de Smith’s more simple surrender to the courts’ expedient
exercise of jurisdictional review. Gordon was more tolerant of judiciai ab-
dication to the world of discretion than he was to attempts to recognize the
interests advanced by legal concepts and the need for choice between policy-
driven concepts.
In the first edition of his text-book, de Smith paid homage to Gordon’s
conceptual logic before eventually dismissing Gordon’s limited view of ju-
legal rights, that a Court of law can even weigh its deficiencies. [Gordon, “‘Admin-
istrative’ Tribunals and the Courts”, supra, note 12 at 441.]
Gordon went on to argue that the law itself provided no criteria to identify considerations
which were irrelevant to the exercise of administrative discretion.
97A. Rubinstein, Jurisdiction and Illegality (Oxford: Clarendon Press, 1965) at 194. Like
Gordon, Rubinstein lamented the lack of clarity in the doctrine and related it to the absence
of a text-book.
98Ibid. at 213.
99Gordon, Book Review (1966) 82 L.Q. Rev. 263 at 270. Gordon used his sense of categorical
reasoning to argue that Rubinstein wavered between two “quite opposed” ideas of either making
the actual facts or the evidence available to the tribunal determinative in jurisdictional review.
10Rubinstein sought to “strike a balance between the need for conclusiveness and the re-
quirements of justice.” [Rubinstein, Jurisdiction and Illegality, supra, note 97 at 217.]
REVUE DE DROIT DE McGILL
[Vol. 34
risdiction as impractical. de Smith recognized that Gordon’s absolute theory
of jurisdiction embraced the virtues of both “logical consistency and final-
ity”,101 but concluded that it would excessively fetter the ability of super-
vising courts to intervene when necessary:
At bottom … the problem of defining the concept ofjurisdiction for the purpose
of judicial review has been one of public policy rather than one of logic.’ 02
Gordon, who warmly embraced the idea of a text-book in this confused and
inconsistent field of jurisprudence, could not believe that he had won the
logical battle, but lost the expanded policy war:
Dr. de Smith agrees that the ‘pure theory’ or jurisdiction has logic, consistency
and coherence on its side, though he finds an apologia for judges reverting to
the idea of conditional jurisdiction on grounds of expediency, his reasoning
throughout seems to imply that the justifications they offer are neither logical,
consistent nor coherent. 03
de Smith acknowledged the power of Gordon’s conceptual arguments and
was unable to explain the cases except by reference to the discretionary
category of policy and expediency. Gordon, in turn, could live with such
an explanation as a second best solution because it did not challenge his
belief in the dichotomy between law and discretion.
As functionalism blossomed in the 1950s, the utility of jurisdictional
fact review as perceived by earlier commentators such as Dickinson and
Finkelman was recognized and defended more openly by mainstream think-
ers. It was assumed that reviewing courts had the policy sophistication to
know when to use the many means of review provided by the doctrine. For
example, Louis Jaffe criticized Gordon’s absolute theory of jurisdiction as
“barrenly semantic”1 04 because it paid no attention to the purposes of ju-
dicial review. Jurisdictional control should serve a functional purpose, and
Gordon’s theory was inadequate because it did not examine “the why and
wherefor of the doctrine”, but only relied on its internal “logical suffi-
ciency”.10 5 Similarly, Geoffrey Sawer argued that judges never accepted Gor-
don’s limited view of excess of jurisdiction and maintained “that the
‘ 106 Qualitative policy
question is at bottom one of policy, not of logic.
reasoning should determine decisions whether to find jurisdictional error
’01S.A. de Smith, Judicial Review ofAdministrative Action (London: Stevens, 1959) at 67.
102Ibid.
103Gordon, “Conditional or Contingent Jurisdiction of Tribunals”, supra, note 20 at 193. See
also Gordon, Book Review, supra, note 21.
Rev. 953 at 962.
‘4L.L. Jaffe, “Judicial Review: Constitutional and Jurisdictional Fact” (1957) 70 Harv. L.
05Ibid. at 963 n.38.
106G. Sawer, “Error of Law on the Face of An Administrative Record” (1954) 3 U. W. Aust.
L. Rev. 24 at 34.
1989]
D.M. GORDON’S SCHOLARSHIP
because courts supervised the reasonableness of the merits of a tribunal’s
ruling and not only the scope of authority asserted in it.107
Gordon’s theories have attracted both opponents and proponents in
contemporary debate, but contemporary commentators understandably do
not share Gordon’s conception of law. David Mullan’s criticisms of Gordon’s
theory of jurisdiction ignore Gordon’s outdated understanding of statutory
interpretation, and assumptions about the ability of legislatures clearly to
define objective limits on the scope of authority. Mullan argues that once
Gordon accepts some form of jurisdictional review by the court
the whole question of how far that inquiry should extend comes into focus
and … Gordon becomes involved in the problem of delineating questions af-
fecting jurisdiction from those which do not.10 8
Gordon believed that true jurisdictional questions would emerge from prop-
erly worded enabling statutes. His belief ignored much of the thought about
statutory interpretation even in his own time, but it harkened back to a
Rule of Law vision of adjudication as an objective science.
Peter Hogg has used Gordon’s theories to reject the Supreme Court’s
insistence on the jurisdictional nature of “preliminary” facts and the method
of determining such facts, but Hogg justifies the tribunal’s finality in func-
tional terms and not in the logical or statutory terms which Gordon fa-
voured. In the context of the Bell decision, 10 9 Hogg argued that the human
rights tribunal should have the power to decide what residences are self-
contained dwelling units because of
the value of the agency’s experience, knowledge and expertise and its familiarity
with the purposes and policies of the regulatory scheme… .110
Hogg and other contemporary scholars do not believe, like Gordon did,
that jurisdictional review is by and large a matter of statutory interpretation
of the scope of a body’s powers as defined in the enabling legislation.11’
Likewise, Hogg cannot accept Gordon’s ideal vision of objective adjudi-
cation and his pessimistic vision of raw discretionary power. Instead, he
IOIbid.
108D. Mullan, “The Jurisdictional Fact Doctrine in the Supreme Court of Canada – A Mit-
igating Plea” (1972) 10 Osgoode Hall L.J. 440 at 443.
’09Metropolitan Life v. International Union of Operating Engineers, [1970] S.C.R. 425, 11
D.L.R. (3d) 336,70 C.L.L.C. 14,008; Bellv. Ontario Human Rights Commission, [1971] S.C.R.
756, 18 D.L.R. (3d) 1.
I op. Hogg, “The Jurisdictional Fact Doctrine in the Supreme Court of Canada: Bell v. Ontario
Human Rights Commission” (1971) 9 Osgoode Hall L.J. 203 at 214.
“‘R.A. Macdonald, “Absence of Jurisdiction: A Perspective”, in Canadian Institution for
the Administration of Justice, JudicialReview ofAdministrative Rulings (Montreal: Yvon Blais,
1983) at 179.
McGILL LAW JOURNAL
[Vol. 34
fills the “undistributed middle” with functional and policy considerations.
Gordon would have eschewed such considerations as extra-legal and un-
necessary in defining the jurisdiction delegated in the enabling statute,
rightly or wrongly, to the human rights tribunal.’ 12
Hogg also parts from Gordon’s conceptual framework by criticizing the
jurisdictional fact doctrine for ignoring questions of deference and not hav-
ing “regard for whether the ‘error’ is serious or trivial, clear or arguable,
within or without the special competence of the agency.” 1 3 The questions
of deference or degree of error would have been utterly irrelevant in Gor-
don’s world of bright line limits and categorical concepts. Although Gordon
rarely elaborated on how the scope of authority should be determined, he
would have expected courts to impose what today would be termed a stand-
ard of correctness in enforcing the ascertainable limits established by the
legislature in the words of the statute. Furthermore, appeal to the concepts
of deference and degree of error would not have been necessary to reject
the expansive jurisdictional fact doctrine used in Bell and Metropolitan Life.
In Bell, the human rights tribunal should have had the power to decide
what was a self-contained dwelling unit because the legislature had made
its opinion determinative on the point; the tribunal had acted within its
scope of authority by answering such a question. Jurisdiction could only
have been lost if the tribunal had held that the rental accommodation was
not a self-contained dwelling unit, but nevertheless proceeded to pronounce
upon the claim of discrimination. Concerns about the possibility of final
and unappealable orders derived from the decision are irrelevant sentiments
which ignore the clear statutory language which grants the tribunal power.
Similarly in Metropolitan Life, the governing statute made the Labour
Board’s opinion determinative as to who were union members. The cor-
rectness of their opinion and the method they used to arrive at it were beside
the point as no pre-existing rights were involved. The courts should not
have second-guessed the Board’s admittedly subjective and arbitrary opinion
as to how the question allocated to it should have been determined.
1I2P Hogg, “Judicial Review: How Much Do We Need?” (1974) 20 McGill L.J. 157 at 163.
For example, Hogg demonstrated none of Gordon’s faith in words as he argued:
The meaning of statutory language (or any language for that matter) always depends
upon its context. It will be rare indeed to find a term in a statute which does not
draw some colour from the purposes and policies of the statute of which it is a part.
Judges who are not familiar with those purposes and policies or with the expectations
of those familiar with the field of regulation may give a term its ‘standard legal
meaning’ or its ‘everyday popular meaning’ in ignorance of the technical or policy
implications of their decisions. [Ibid.]
Gordon would not have placed the last two phrases in quotations; they were, for him, real
concepts.
13p. Hogg, “The Jurisdictional Fact Doctrine in the Supreme Court of Canada: Bell v. Ontario
Human Rights Commission”, supra, note 110 at 216.
1989]
D.M. GORDON’S SCHOLARSHIP
None of the commentators discussed above fully shared Gordon’s un-
derstanding of law. Dicey and McRuer were more concerned than Gordon
to champion review by ordinary courts and they were willing to sacrifice
some internal doctrinal consistency to facilitate review. These two thinkers
were, however, willing to embrace Gordon’s understanding of adjudication
and his stark contrast between law and discretion. Willis also flirted with
the contrast of law and discretion, but he was motivated by a concern to
resist judicial review and support the positive state rather than a concern
to praise the objectivity and autonomy of law. Other commentators such
as Dickinson and Rubinstein could not accept Gordon’s understanding of
adjudication and argued that judges should recognize that policy choices
were inevitable in the practice of judicial review and should be influenced
by an appreciation of the interests at stake. They tried to reform legal rea-
soning, but they recognized it could no longer be autonomous from social
purposes and consequences. Gordon would have rejected the optimistic and
confident functionalism of Willis, Finkelman and de Smith as based on
relativistic and arbitrary judgments of policy. It is significant, however, that
Gordon would have reacted with less hostility to their attempts to place
jurisdictional review at the level of discretion than at the attempts of others
to penetrate the inner logic of legal concepts and to make them more policy
conscious.
V.
Implications of Gordon’s Thought: Past and Present
Gordon’s work is significant from both historical and contemporary
perspectives. Historically, it demonstrates that the vision of an objective,
scientific and autonomous legal order associated with the Rule of Law or
text-book tradition of legal thought did not necessarily have to be combined
with a hostility to the administrative state and an imperialistic imposition
ofjudicial review over governmental work. Gordon conceded much freedom
to administrative bodies because he believed that their work did not involve
the recognition of legal rights and that no principled and consistent grounds
justified judicial intervention. On the issue of judicial review of adminis-
trative activity, Gordon not only parted company with Dicey,l 4 Hewart”15
and McRuer,’ 16 but he did so on the basis of values that are closely associated
with the Rule of Law vision. First, Gordon took the notion of Parliamentary
‘ 4Dicey at times relished in a rather unprincipled faith that “in some form or other the
English courts will always find the means for correcting … injustice.” [Dicey, “The Devel-
opment of Administrative Law in England”, supra, note 54 at 151.) Gordon, of course, did
not share the same concern about substantive justice as he valued the technique of law above
all else. It was the technique of law which allowed courts to claim they were objectively
discovering and applying pre-ascertained standards found in law.
“15 Lord G. Hewart of Bury, The New Despotism (London: Ernest Bein, 1929).
16J.C. McRuer, Ontario, Royal Commission Inquiry into Civil Rights, supra, note 65.
S
REVUE DE DROIT DE McGILL
[Vol. 34
supremacy seriously and accepted that the legislature had deliberately not
provided for ascertainable legal standards or appellate review. Within the
Rule of Law tradition a tension existed between the admitted supremacy
of Parliament and the courts’ unique ability to interpret the law. Gordon
did not seem to be concerned when the exercise of Parliamentary supremacy
reduced the power of ordinary courts.
Second, Gordon built much of his case for non-intervention on the
dichotomies between law and politics, and between adjudication and dis-
cretion which were fundamental to the Rule of Law vision. Tribunals which
exercised administrative functions were mini-legislatures charged with
open-ended considerations of what was politic and expedient in particular
circumstances. No standards existed to govern such questions and the best
any court could do would be to substitute its own subjective and arbitrary
opinion. Despite this acceptance of discretion, Gordon stubbornly main-
tained a faith in government limited by law because of his belief that the
scope of administrative authority could be clearly defined in enabling leg-
islation and discovered and enforced by courts. Procedural review, if prac-
tised at all, was to follow statutory prescriptions and not be based on vague
concepts of fairness or influenced by qualitative assessments of the merits
of the decision.
Third, Gordon’s understanding of adjudication as the objective rec-
ognition of pre-existing rights encouraged him to see the limitations of courts
reviewing determinations based on vague standards of policy and efficiency.
It is tempting to conclude that Gordon’s use of the Rule of Law’s episte-
mology and theory of adjudication unmasks the political agenda of many
more closely associated with that mode of thought.”17 One of the shortcom-
ings of the Rule of Law framework of categorical reasoning and its division
of law and politics is the way it can disguise questions of fundamental values
and be manipulated to achieve disparate ends.’t 8 For example, Rule of Law
” 7While accepting Dicey’s assumptions about the nature of law, Gordon may have inad-
vertently done a better job than even Dicey’s critics in demonstrating that Dicey was not only
concerned with legality, but also with the notion “that public authorities ought not to have
large powers” and if so, that it was “an opinion peculiar to a conservative Liberal-Unionist
of the Victorian era, and … not a legal doctrine at all.” [W.I. Jennings, “The Report on
Ministers’ Powers” (1932) 10 Public Administration 333 at 342.]
” 8After an examination of his legal writings, I must admit that Gordon’s politics remain for
me largely a matter of conjecture, even mystery. At times Gordon let slip anti-statist and
individualistic musings similar to those of Dicey. [See supra, note 57.] In his advocacy of
wartime measures, Gordon was authoritarian. [See infra, notes 121-128 and accompanying
text.] Gordon may have been aware of how often his doctrinal arguments would favour un-
fettered exercise of state power, but if this is so, he disingeniously built an elaborate conceptual
structure and never articulated sympathy with the administrative state.
1989]
D.M. GORDON’S SCHOLARSHIP
approaches provided effective rhetorical foundations for both Gordon’s crit-
icisms and Dicey’s and McRuer’s sanctioning of expansive judicial review.
Gordon reveals the contingency in legal thought in that he accepted (or
rather ignored) the rise of administration without sacrificing a vision of law
which was increasingly under attack. Changes in the intellectual allegiance
of lawyers either to functionalist judicial review or an obstinate champi-
onship of all High Court review were not inevitable: Gordon represented
one option of drawing the wagons around the legal enterprise and protecting
its purity by abdicating much ground to politics. Dicey, Hewart and McRuer
were very ambitious in their attempts to judicialize the administrative state,
but even the moderates of the Committee on Ministers’ Powers and the
realists were more ambitious than Gordon to have the law supervise the
exercise of administrative discretion. Gordon could not abide the fuzziness
inherent in flexible or functional forms of review. If control could not be
categorized, it had to be abandoned. The epistemology, if not the politics,
of Rule of Law thinking could tolerate the exercise of unregulated admin-
istrative power within the increasingly expansive boundaries drawn either
by enabling legislation or legislative refusal to vest rights in administrative
regimes which were designed to allow the discretionary pursuit of the public
interest.
Although his professional desires were to rationalize doctrine and de-
velop principled distinctions in order to save law, Gordon left much room
within administration for political considerations of the public interest. If
one’s objective was simply to stop judicial attempts to intervene and review
administrative actions, Gordon’s theories of jurisdiction and the distinction
between administrative and judicial functions would still have much utility.
Indeed, no less of an advocate of the administrative state than John Willis
was prepared to use Gordon’s arguments to his advantage. Administrative
law has again come under criticism for its preoccupation with individual
grievances and its inability to deal with issues of policy-making, collective
consumption and democracy.” 9 Gordon’s analogy of administration with
legislation is provocative and might be considered as a basis for reform
today. First, however, it would be wise to examine some of the implications
of this analogy.
Gordon’s sharp distinction between administrative and judicial func-
tions was used by some Canadian courts to repel attempts to review the
administration of wartime controls. In Re Brown,120 Robertson C.J.O., like
119P McAuslan, “Administrative Law, Collective Consumption and Judicial Policy” (1983)
46 Mod. L. Rev. 1; A.C. Hutchinson, “The Rise and Ruse of Administrative Law and Schol-
arship” (1985) 48 Mod. L. Rev. 293.
120Re Brown, [1945] O.R. 554 (C.A.).
McGILL LAW JOURNAL
[Vol. 34
Gordon, refused to inflate interests into rights and recognized the public
and distributive, as opposed to the adversarial and corrective character of
the administration of rent controls. Robertson held that the imposition of
rent controls was not subject to judicial review because it did not involve
the pre-existing rights of landlords or tenants, but the pursuit of the public
interest. 121 An administrator was “not appointed to judge between the lan-
dlord and the tenant and to determine their respective rights, notwithstand-
ing that his order might affect them.”‘ 22 The sharp distinction between
matters concerning rights and the public interest was consistent with a faith
in government to determine questions on grounds of the public interest
even if that meant sacrificing the interests of individuals.
The fact that Gordon’s understanding of administrative functions left
much room for state activity is underlined by his defences of other more
objectionable wartime measures. Gordon agreed with the Manitoba Court
of Appeal in Yasny v. Lapointel2 3 that the Secretary of State’s power, under
the War Measures Act, to ban publications which according to the Act
“would or might be prejudicial to the safety of the State or the efficient
prosecution of the war” was an administrative determination of policy not
reviewable by means of certiorari.12 4 Gordon also wrote in support of a
ruling of the British Columbia Court of Appeal which held that a decision
to detain a deserter for fifteen months was an administrative decision not
subject to judicial review. 125 The majority of the Court was influenced by
Gordon’s definition of administrative functions and held that the decision
was made on grounds of policy and expediency, and not as a matter of the
adjudication of rights or the imposition of criminal liability.126 A minority
of the Court and an academic commentator criticized both the Court’s and
Gordon’s reasoning as formalistic and suggested that the underlying liberty
interest be recognized as the substance of the matter and be so protected.127
interest.” [Ibid. at 566.]
121″Surely the ‘other side’ in such a matter is not the tenant’s side, but rather the public
l22Ibid at 568.
123(1940) 48 Man. R. 56, [1940] 3 D.L.R. 204 (Man. C.A.).
124Gordon, Case Comment on Yasny v. Lapointe (1940) 18 Can. Bar Rev. 732.
125Gordon, Case Comment on R. v. Pantelidis (1943) 21 Can. Bar Rev. 421.
26R. v. Pantelidis, [1943] 1 D.L.R. 569, [1943] 1 W.W.R. 58 (B.C. C.A.) (cited to D.L.R.) at
1
127Ibid. O’Halloran J.A., in dissent, argued at 588:
573 per McDonald C.J. B.C. and at 579 per McQuarrie J.A. (directly citing Gordon).
Clothed in the form of a Board of Inquiry and purporting to act as a Board of
Investigation, the Board is nevertheless given a jurisdiction far beyond the powers
ordinarily attached to Boards of that nature. For it is given power of punishment
and imprisonment.
An anonymous academic commentator on Pantelidis, most likely the editor Caesar Wright or
the young Bora Laskin who wrote the subsequent review, similarly criticized the formalism of
allowing a decision concerning liberty to be conducted without safeguards simply because it
was labelled “administrative”. [Case Comment (1943) 21 Can. Bar Rev. 308.]
1989]
D.M. GORDON’S SCHOLARSHIP
37
Gordon’s arguments were not only the result of wartime fever; 128 at a con-
ceptual level his blindness to liberty interests mirrored his earlier blindness
to property interests. 129 Gordon believed the courts should leave public
authorities alone if the latter had merely been given vague directions to do
what was expedient, as opposed to recognize rights as defined in the statute.
Courts were to intervene only to protect rights. Gordon even went so far
as to say that the repressive detention case of Pantelidis was a “particularly
apt case to demonstrate the impracticability of requiring administrative
tribunals generally to follow curial methods.”‘ 130 The war brought out an
authoritarian streak in Gordon, but his conceptual apparatus, at all times,
was remarkably accommodating to the role of government to pursue the
collective good.
Gordon would protect pre-existing rights recognized in statutes, but he
did not expand this idea into a tension between the interests of the individual
and the state which could be threatened by the discretionary exercise of
power. He was careful not to entrench interests that might be affected by
the exercise of discretion and he did not impose adversarial concepts on
the exercise of discretion. For example Gordon, unlike the Committee on
Ministers’ Powers, had no trouble conceiving of the public as both party
and judge to administrative proceedings. Adversarial concepts of bias did
not apply because no rights were at stake. 31 Gordon was willing to accept
administrative determinations of the public interest with infrequent judicial
policing of the scope of duly constituted authority but not of the merits or
effects of those policy decisions.
In the end, Gordon’s thought can accommodate administrative deter-
minations of the public good, but only by creating a divide between law
128Gordon was sympathetic to the war effort and stated:
I see nothing startling in the idea that tribunals, dealing with actions that bear
directly on the war effort, should not be bound by the restrictions on courts. Indeed,
I do not think the war could be carried on efficiently if they were. [Gordon, Case
Comment on R. v. Pantelidis, supra, note 125 at 423.]
129See for example, Gordon, Case Comment on R. v. London County Council, supra, note
31. See also, infra, notes 40-43 and accompanying text.
130Gordon, Case Comment on R. v. Pantelidis, supra, note 125 at 422.
131See U.K., Committee on Ministers’ Powers, Report, supra, note 26 at 78-9. For disagree-
ment with the Committee’s approach and an argument similar to Gordon’s, see Willis’ com-
ments on the inapplicability of judicial concepts of bias to administrative activity. [J. Willis,
ed., Canadian Boards at Work (Toronto: MacMillan, 1941) at 116-17.] Despite their different
starting points, it is tempting to speculate that Gordon and Willis were unconsciously brought
together on this point by a Canadian political culture which embraced the need for public
power and a trust that public power was not an alien force to be limited by adversarial concepts
of bias. On the other hand, the two thinkers may have been brought together by a common
willingness to accept unfettered discretion with Gordon unwilling to compromise his vision
of law and Willis sceptical about reforming the judicial process.
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[Vol. 34
and politics and placing policy and discretion safely on the side of politics.
In doing so, administrative determinations are placed beyond judicial eval-
uation and scrutiny even in cases of abuse and unreasonable error. Gordon
cannot provide antidotes to the impoverished sense of the public and po-
litical in administrative law because his sense of the public is premised on
the absolute split between politics and law. The two areas are as “unmerge-
able” as any of Gordon’s concepts. Furthermore, the public interest is not
distinct from the arbitrary exercise of will and as such is not an appropriate
topic for legal debate and criticism.132 If anything, Gordon’s understanding
of law and the hold it has had on the “logical conscience” of the profession
has retarded attempts to accommodate the public interest in legal discourse.
Gordon, like much of the legal profession, found it easier to accept occa-
sional, and not so occasional, lapses into unfettered judicial and adminis-
trative discretion rather than to attempt to integrate the interests and
purposes of both rights and public interests into legal reasoning.
If we should ever despair at our attempts to impose controls on the
exercise of discretion in a qualitative and selective manner, or to come to
accommodate both rights and public interest in judicial review, Gordon’s
analogy of administration to legislation remains ready to be developed on
what is left of Parliamentary supremacy and the Rule of Law tradition. The
promise of principles and consistency that Rule of Law thought holds out
may have some residual allure for lawyers, but the chasm between law and
politics that must accompany the promise is too great for all but the most
optimistic of democrats and the most formalistic of lawyers.
132Nonet has noted the relation between the impoverished role of law as only an external
restraint on power and the Diceyean framework. [P. Nonet, Administrative Justice (New York:
Russell Sage, 1969) at 3fM.] For a provocative account of the hold the external perspective could
have on even those who championed the activities of the administrative state, see H. Janisch,
“Bora Laskin and Administrative Law: An Unfinished Journey” (1985) 35 U.T.L.J. 557.
