I gave a presentation a few weeks ago for the Canadian Institute. An odd subject for a partisan of deference like myself, but I enjoyed putting a paper together. Practitioners may find it provides helpful guidance on ways to attack administrative decisions. You can download it here. And here is the abstract: J’essayerai lors de cet […] Read more

An old debate in administrative law concerns the appropriate role of courts in imposing common law restrictions on discretionary powers. For example, when a statute says “X may, in his absolute discretion, do Y”, are any limitations of fairness or rationality implied by the common law? The modern tendency has been to admit that there […] Read more

Here is a problem for deferential approaches to judicial review: what about an administrative decision that is a reasonable resolution of a particular case but which is reached by flawed logic? If the flawed logic is not sanctioned, it remains on the books and may influence future administrative decision-makers: indeed, failing to follow a previous […] Read more

Some have suggested that the announcement on Friday that Mainville J.A. has been appointed from the Federal Court of Appeal to the Quebec Court of Appeal suggests that he will be appointed to fill one of the Quebec seats on the Supreme Court of Canada, a seat about to be vacated by LeBel J. Mainville […] Read more

Here is a great passage from an Australian case (Mainteck Services v. Stein Heurtey) on contractual interpretation: What is the legal meaning of a promise to sell “my Dürer drawing”, if the vendor’s wife owns a Dürer drawing which is on display in their home, and the vendor keeps another secretly in his study? What […] Read more

Canadian courts have come to accept that the constitution is not some sort of holy grail that administrative decision-makers should not touch. As it is the supreme law of the land, its writ ought to run in any government agency, and its authority may be invoked by individuals in almost any decision-making setting. But does […] Read more

The Supreme Court of the United States released Scialabba v. Cuellar de Osorio this week, an attempt to pick apart the entrails of a poorly drafted immigration provision designed to deal with the problem of “aging out”. What happens when an immigrant has been on a waiting list for so long that he becomes too […] Read more

Purely coincidentally, the day after Quebec passed its “right to die” legislation, the Supreme Court of Canada released an important decision on prosecutorial discretion: R. v. Anderson, 2014 SCC 41. The two are linked. (This is a quick take, and I will update with further links later today. UPDATE: updated!) Quebec’s legislative initiative  is problematic […] Read more

When judges strike down administrative decisions, they take a step that must be justifiable and justified in normative terms. I suppose we all agree on that. Yet whole swathes of administrative law doctrine do not establish normative standards for judicial intervention. Rather, they rely on descriptive labels.The rule against bias is an excellent example. A […] Read more

A major collection on substantive judicial review of administrative action will appear shortly under Hart Publishing’s imprint. Edited by Mark Elliott and Hanna Wilberg, The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow brings together many of the world’s leading public law scholars in a collection that follows in the sizeable footsteps of The […] Read more