Following on from my first s. 96 entry, here are some sceptical thoughts about what the protected “core” might mean today…. Yet these judicial references to a protected “core” that is beyond the reach of the legislative and executive branches have to be reconciled with the realities of modern litigation. Earlier cases set up tribunals […] Read more

In a recent report, The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences, Varda Bondy, Lucinda Platt and Maurice Sunkin challenge “widely held and influential assumptions about the costs and misuse of JR” in Britain. On the contrary, they find, for instance: JR claimants often win tangible benefits, such […] Read more

I am working on a paper on s. 96 of the Canadian Constitution. Here is a first taste of a very first draft…. Section 96 of the Constitution Act, 1867 seems innocuous – an “uninstructed reading of the section itself” reveals little[1] – providing simply that judges of the superior courts (and the now defunct […] Read more

In advance of Friday’s roundtable on consistency in tribunal decision-making I have posted the text of my paper to SSRN. Download it here. Here is the abstract: “When the facts change, I change my opinion,” John Maynard Keynes once tartly replied to a questioner concerned that the economist had altered his position on a matter […] Read more

Canadian courts have sometimes described undeferential reasonableness review as “disguised correctness”, cases in which a court says it is applying a reasonableness standard but in fact performs its own analysis of the law and the facts to reach an independent conclusion that it labels ‘reasonable’ or ‘unreasonable’. Here are some examples of judicial uses of […] Read more

Blogging is likely to be light for the next couple of weeks, as my list of speaking engagements implies. There is also the small matter of a graduation ceremony on November 2 for which my office is responsible, as well as the usual array of administrative and writing commitments. If you have not already registered […] Read more

I will be contributing a chapter, with the working title, “A Pluralist Account of Deference and Legitimate Expectations” to a forthcoming Hart Publishing collection edited by Matthew Groves and Greg Weeks. In the fourth and final section of my draft I apply my pluralist approach to three controversial areas of doctrine: knowledge and reliance, substantive […] Read more

It is boom time in Canada for cases involving the constitutionality of regulatory regimes. Joining the recent decision in Guindon (see here) is last week’s judgment in Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46. At issue here was British Columbia’s regime of roadside breathtesting of drivers. Driving suspensions are imposed, with […] Read more

I will be contributing a chapter, with the working title, “A Pluralist Account of Deference and Legitimate Expectations” to a forthcoming Hart Publishing collection edited by Matthew Groves and Greg Weeks. In the third section of my draft I explain my pluralist approach. As always, comments are very welcome. Download the draft in its entirety […] Read more

Kevin Stack has an excellent new paper entitled “Purposivism in the Executive Branch: How Agencies Interpret Statutes“. Here is the abstract: After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question […] Read more