The President of France, M. Hollande, has recently suggested that where the administration fails to reply to individual decisions silence should be taken as indicating consent: “dans de nombreux domaines, le silence de l’administration vaut décision d’acceptation et non plus décision de rejet”. The reasoning is obvious: citizens deserve responses from the machinery of the state; […] Read more

Richard Ekins has an interesting response to my post Death, Democracy and Delegation over on the UK Con Law blog. I have just posted a comment in reply which is worth reproducing here: I perhaps did not identify my central point with sufficient precision. My goal was to highlight the democratic potential of administrative guidelines, […] Read more

The Supreme Court of Canada heard argument last Monday in an important case on reviewing delegated legislation: Shopper’s Drug Mart v. Minister for Health. The pharmacies lost in the Ontario Court of Appeal: 2011 ONCA 830; though Epstein J.A. delivered a convincing dissent. Up for discussion at the Supreme Court of Canada was the vires […] Read more

Should courts defer to administrative decision-makers’ interpretations of the limits of their own statutory authority? The Supreme Court of the United States finally answered that question in the affirmative today, in City of Arlington v. Federal Communications Commission. I think the majority is absolutely right, as I explain below. Indeed, Scalia J.’s majority opinion is […] Read more

Common law courts are generally quite reluctant to review decisions for factual errors. Like all generalisms, this significantly understates the complexity of the area. Nonetheless, a recent Irish decision provides a fine illustration. In Richardson v. Mahon, [2013] IEHC 118, the applicant challenged a factual assertion in a report issued by the respondent tribunal. The […] Read more

I have a new post at the UK Con Law Group blog. I praise the Ménard report recently commissioned by the Assemblé Nationale while reiterating my earlier criticisms of the Irish High Court decision in Fleming v. Ireland, [2013] IEHC 2. Here is the closing paragraph: Whatever its ultimate fate, the Ménard report’s orientation is […] Read more

J’espère de voir plusieurs d’entre vous la semaine prochaine. Je donnerai la Revue annuelle de l’Association du Barreau Canadien, à Québec mercredi le 15 et à Montréal vendredi le 17. Vous pouvez vous inscrire au site-web de l’ABC. Au plaisir! Read more

Historically, judges have developed and enforced the rules of procedural fairness. Little or no deference is owed to procedural choices made by administrative decision-makers. In an important new decision, however, Bich J.A. of the Québec Court of Appeal has challenged the prevailing orthodoxy. Bich J.A. taught law at my institution, the Université de Montréal, before […] Read more

If you are a regular follower, you have probably seen these before, but two of my recent essays have been published and are now available for free download and citation: The Unfortunate Triumph of Form over Substance in Canadian Administrative Law (2012) 50:2 Osgoode Hall Law Journal 317. Courts and Copyright: Some Thoughts on Standard […] Read more

Public procurement is governed by a plurality of legal regimes. Statutes, regulations, international law and common law all have a say. Norms are enforceable by judicial review and (somewhat more lucratively) in private actions. Given the pluralistic nature of legal regulation of public procurement, it is unsurprising that norms associated more with public law have […] Read more