President Obama’s apparent determination to wield executive power to achieve his ends has provoked much discussion this week. The tendency for leaders to use various methods other than legislation to fulfill their objectives should be familiar to Canadian readers. Minority governments in parliamentary systems are in much the same place as an elected President who […] Read more

The Supreme Court of Canada this morning waded into the mire of the “economic torts”, a grab bag of common law causes of action that impose liability for (primarily) nasty behaviour in the marketplace. Up for discussion in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 was the “unlawful means” tort, though as […] Read more

The UK Supreme Court released a very important decision last week: R. (HS2 Action Alliance) v. Secretary of State for Transport, [2014] UKSC 3. David Hart Q.C. has an excellent overview here, while Mark Elliott and Adam Tomkins have commented incisively. The importance of the decision lies in the intersection of domestic constitutional principles and […] Read more

I am somewhat late to last week’s D.C. Court of Appeals decision in the Net Neutrality case: Verizon v. Federal Communications Commission.  In brief, the Court struck down the Federal Communications Commission’s “Open Internet Order”, which imposed restrictions on how broadband providers may interact with providers of services like Netflix, Google and Youtube (so-called “edge […] Read more

One of the issues that has bedevilled common law courts is the law of state liability: when does official misconduct give rise to a right of action in damages? Various answers have been given. Usually there is a threshold test of proximity, related in some way to the statute that empowers the decision-maker. And there […] Read more

The applicant in Canada (Citizenship and Immigration) v. Mudalige Don, 2014 FCA 4 jumped ship in Oshawa. Twelve days elapsed before he reported himself to the authorities and claimed refugee status. In the interim, a removal order had been made against him. Did he have any procedural protections prior to the making of the removal […] Read more

This week the Supreme Court of Canada heard the “Nadon Reference“. The case involves, at least, whether judges from the federal courts can be appointed to the three ‘Quebec seats’ on the Court (see here for background). One of the issues that has been around for a while and arose again at the oral hearing […] Read more

A troubling controversy is emerging about the decision of a couple of federal adjudicative tribunals, those charged with social security and refugee appeals, to refuse to publish all of their decisions. Those who regularly represent clients in these appeals are complaining. There is no general rule even that all judicial decisions be published. In courts […] Read more

As a general rule, governments cannot and should not be required to fund speech or activities with which they do not agree. An organization committed to perpetuating inequalities between men and women, or which decries homosexuality as sinful, can lawfully be shunned. But should such an organization, especially one which previously received government funding, be […] Read more

In Canada, a global reasonableness test is supposed to be applied in the review of administrative decisions, even where the allegation is that the decision-maker abused its discretion. The Supreme Court said as much in 2003 (see paras. 22-25). But some of the traditional grounds of review for abuse of discretion fit uneasily under the […] Read more