Good Faith Across the Public-Private Divide
I spent most of today and yesterday in a colloquium on cooperative federalism, as part of the “G3” initiative that groups Université de Montréal, Université libre de Bruxelles and Université de Génève. I gave a talk on the gun registry case under reserve at the Supreme Court of Canada. One of the issues that interested […] Read more
Doing Reasonableness Review: Workplace Health, Safety and Compensation Commission v. Allen, 2014 NLCA 42
There is a fascinating review of Canadian administrative law on reasonableness in Workplace Health, Safety and Compensation Commission v. Allen, 2014 NLCA 42. A received benefits for a workplace injury. These benefits were capped at 80% of actual earnings. A then retired and was to receive benefits “equal” to the pension he would have received. […] Read more
Filling in the Blanks: EllisDon Corporation v. Ontario Sheet Metal Workers’ and Roofers’ Conference and International Brotherhood of Electrical Workers, Local 586, 2014 ONCA 801
Here is an interesting variant on the ‘reasonable decision but dodgy reasoning’ problem I have raised recently: what if an administrative decision-maker takes a decision that is supported by statutory authority, but fails to mention the statutory authority in question? This is the scenario in EllisDon Corporation v. Ontario Sheet Metal Workers’ and Roofers’ Conference […] Read more
Wargaming Financial Regulation
Several years ago, in a review of Andrew Ross Sorkin’s excellent review of the 2008 financial crisis, Too Big To Fail, I suggested: Enough is now known about humans’ cognitive tics to start trying to tame them. What if the regulators of financial institutions were required to undergo intensive and ongoing training in behavioural economics […] Read more
Section 96, Statutory Tribunals and Judicial Review
My preoccupation with the internal standard of review issue has led me to wonder whether it would even be constitutionally permissible for a Canadian legislature to require an administrative body to conduct judicial reviews. The idea is not entirely far-fetched: the UK’s new tribunal system has just this feature, with the Upper Tribunal required on […] Read more
The Law of Unintended (Standard of Review) Consequences: Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113
My post on Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 has attracted many comments. Some readers are sympathetic to the Supreme Court of Canada. And, indeed, one may wonder what the practical effect is of standard-of-review discussions that sometimes border on the metaphysical. Should the Supreme Court of Canada not focus on resolving […] Read more
Is Deference on Procedural Fairness now the Law in the Federal Courts?
It seems to be, post-Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 245. First, the facts. The Board conditionally approved a major pipeline project to be completed by Enbridge. There are various challenges to the decision pending before the courts. This challenge concerned a number of matters that could fairly be described as […] Read more
OBA Annual Update on Administrative Law
Last calls for the year in review session Stratas J.A. and I are doing in Toronto next week. The event is close to a sell out, I am told, so register here if you are interested in coming along. If there are no seats left, or if you can’t make it to Toronto, there will […] Read more
What are Administrative Tribunals For, Anyway?
 Board hearings are not an open-line radio show where anyone can dial in and participate. Nor are they a drop-in center for anyone to raise anything, no matter how remote it may be to the Board’s task of regulating the construction and operation of oil and gas pipelines. So says Stratas […] Read more
The Policy/Operational Distinction: What Would an Administrative Lawyer Do?
* This is a second extract from a forthcoming essay of mine on the policy/operational distinction in Canadian tort law, “The Policy/Operational Distinction — A View from Administrative Law“. Download a draft here. See my first extract, a post on the Imperial Tobacco case, here * An administrative lawyer is comfortable in recommending that the […] Read more