When a court finds in judicial review proceedings that a decision was unlawful, it must then turn its mind to the question of remedy. Of all the available remedies in the judicial armoury, the mandatory order is the most far-reaching and intrusive. Particular care is required before deploying it, as Lord Sales’s analysis in R […] Read more

“Policy” is one of the most poorly defined terms in the social sciences, as Professor Cairney has observed (The Politics of Evidence-Based Policy Making (2016), at p. 4). In law, the situation is little better. My focus here is on public administration, so I will confine my observations to the law of public administration — […] Read more

I have a new paper coming out next year in the Advocates’ Quarterly, entitled “Against ATCO: Text, Purpose & Context, not “Implied” and “Express” Powers“: It is often said that administrative bodies have no inherent jurisdiction, only those powers granted by the legislature. Questions about the scope of regulatory authority arise frequently and are often […] Read more

A fairly frequent problem in Canadian law is the application of regulatory statutes to individuals or businesses resident or established in another province. Think of a BC brokerage advising (badly) on mortgage transactions in Quebec, an Albertan providing inside information to a Manitoban in respect of stocks traded in Ontario or an online portal based in […] Read more

The vires of delegated legislation is a hot topic in Canadian administrative law. The Supreme Court of Canada recently granted leave to appeal in a pair of cases addressing the issue (I noted the appellate decisions here). Regular readers will know that Canadian courts have divided on the level of deference that is appropriate when […] Read more

With the Supreme Court of Canada set to hear the appeal in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 next week, courts and commentators alike continue to weigh in on the scope of rights of appeal that are limited to questions of law or jurisdiction. Slatter JA made a typically thoughtful contribution in […] Read more

In two recent cases appellate courts have addressed the application of the Canadian Charter of Rights and Freedoms by adjudicative tribunals, the Alberta Court of Appeal in Webber Academy Foundation v Alberta (Human Rights Commission), 2023 ABCA 194 and Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425 (where I was counsel […] Read more

See my introductory note here and previous posts here (on Article 34.1) and here (on Article 37.1). See also Tom Hickey’s note on Zalewski, available open-access from the Modern Law Review, Now, the reader may be wondering what, if any, practical consequences this decision carries. The interpretive discussion of Articles 34.1 and 37.1 is all […] Read more

See my introductory note here and previous post (on Article 34.1) here. Article 37.1 was designed as a ‘saver’ clause to ensure that administrative decision-makers could exercise some powers and functions of a judicial nature. The historical background is covered in McKechnie J’s dissenting opinion (at paras. 25-30). I think the history is ambiguous (a […] Read more

See my introductory note here. The settled approach to Article 34.1 was set out in McDonald v. Bord na gCon [1965] I.R. 217, where Kenny J elaborated a set of criteria for determining whether a body is administering justice. (i.)               a dispute or controversy as to the existence of legal rights or a violation of […] Read more