Even in the good old days when judicial review of administrative action was organized around readily identifiable poles such as “judicial” and “administrative” decisions, lawyers engaged in all manner of “verbal gymnastics” to contort their cases into a more favourable category (SA de Smith, Judicial Review of Administrative Action, 1st ed., 1961). In an administrative […] Read more

Before Christmas, I posted some thoughts on s. 96 of the Constitution Act, 1867 (see e.g. here and here). I have just finished revising my paper, which will appear in an edited collection about which I hope to say more soon. Here is the additional material I inserted in the last section, about how Canadian […] Read more

Tomorrow I am speaking at the first in a series of conferences — En 2 mots / In 2 Words — organized by my colleague Vincent Gautrais. My topic is “Prescribing Surveillance by Law”. Here is the abstract I prepared: The common law of judicial review of administrative action has treated broad discretionary powers in […] Read more

There is a new decision from the Full Federal Court of Australia on whether and how statistical evidence can be used to demonstrate bias (in particular, prejudgement of relevant issues): ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30. Readers will recall that this question has also been raised in Canada (unsuccessfully) and […] Read more

In Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law, Jerry Mashaw writes of how early in the life of the American republic courts occasionally formed part of the regulatory structure: While Congress left judicial review primarily to common law actions for damages, it provided for access to courts by statute […] Read more

Mindful that Canadian administrative law may be in for one of its periodic paradigm shifts, and of a talk entitled “The Analytical Structure of Reasonableness Review” that I gave to the law clerks of the Federal Court and Federal Court of Appeal last month, I thought it would be opportune to post some thoughts on […] Read more

In his London School of Economics Ph.D. thesis, Dean Knight offers an interesting theoretical perspective on judicial review doctrine. Grouping writers and judges into four broad groups, ranging from those who prefer more formalistic, bounded approaches to those who embrace thorough contextual inquiry, he assesses each group against Lon Fuller’s ‘internal morality of law’. Knight’s […] Read more

The decision in Giroux c. Gauthier, 2016 QCCS 724 contains the first of what will likely be many judicial discussions of the effect of Quebec’s new Code of Civil Procedure (in force since January 1) on administrative law.* One of the measures taken was to combine all the judicial review remedies in the same provision, […] Read more

Canadian courts have generally been cautious about expanding the content of the record on judicial review. I am generally in favour of restraint (see e.g. here), as expanding the content of the record may have the effect of enticing courts to expand the scope of judicial review. But the factual matrix of Sobeys West Inc. […] Read more