A rant from a footnote in a paper I am working on, discussing amongst other things Toronto (City) v. C.U.P.E., Local 79, [2003] 3 SCR 77: Hereafter “CUPE (2003)”. I call it CUPE (2003) to distinguish it from C.U.P.E. v. New Brunswick Liquor Corporation, [1979] 2 SCR 227, which is generally referred to as “CUPE”. […] Read more

Though it is slightly different from the usual fare I serve up here readers may be interested to know that I have a paper in a forthcoming volume of the Queen’s Law Journal on constitutional change. My contribution focuses on recent developments in Canada and the United Kingdom, the main common theme being the narratives […] Read more

Two from the collection edited by Mark Elliott and Hanna Wilberg, The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow. First, Elliott, “From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification”: Questions about substantive judicial review – its legitimacy, its appropriate intensity, its proper limits – often appear to be as intractable […] Read more

Say you were a legislator who wished to dress up a criminal offence as a regulatory penalty, perhaps because you wanted to avoid triggering the constitutional protections that attach to criminal proceedings. You would presumably impose an extraordinarily large fine, include language that has connotations of guilt and set out an informal process. Now, say […] Read more

That is one possible reaction to Timothy Endicott, “Comity Among Authorities”: An authority often needs to take account of the decisions of another authority, in order to carry out its own responsibilities. This essay outlines general principles of the approach that authorities ought to take toward the decisions of others. The most important is the […] Read more

South of the border, more and more voices are joining the chorus of concern about the administrative state. It is difficult to trace cause and effect — administrative and executive power have long been a topic of concern on the left and right of American politics — though I suspect that President Obama’s use of […] Read more

I think it is safe to say that today’s conventional wisdom is that central bank independence from politics should be sacrosanct. Canada’s Finance Minister, Joe Oliver, is in lukewarm water after saying publicly last week: “Quantitative easing is not on the table”. Critics suggest that this represents an inappropriate interference with the independence of the […] Read more

In my view, the Supreme Court of Canada’s commitment to deference is in tension with its institutional role as the country’s highest court. According deference to administrative decision-makers means favoring legal pluralism, permitting those decision-makers to put their own spin on rules of substantive and procedural law. But a court of final resort may feel […] Read more

In Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, the Ontario Court of Appeal tackled the role Charter values may play in the administrative process. At the centre of the case were two employees who worked in a prison. Taylor-Baptiste was the manager of Dvorak, who was also a union president. During a […] Read more

The latest contributor to the growing literature on deference and procedural fairness is Adrian Vermeule in “Deference and Due Process“: In the textbooks, procedural due process is a strictly judicial enterprise; although substantive entitlements are created by legislative and executive action, it is for courts to decide independently what process the Constitution requires. The notion […] Read more