Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
What happens when administrative decisions, or decision-making processes, come into contact with the ordinary civil process? I will discuss two important recent Canadian decisions in this post: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (Supreme Court of Canada), and Guay c. Gesca ltée, 2013 QCCA 343 (Quebec Court of Appeal). In a […] Read more
In my essay on deference and the copyright cases, I suggested that an innovation the Supreme Court of Canada made in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 would bedevil lower courts. Briefly, the exception suggests that where there is co-ordinate jurisdiction between courts and administrative decision-makers […] Read more
Cass Sunstein has been whetting appetites for his new book, Simpler: the Future of Government (out April 9) by doling out tasty samples of its content (see e.g. here and here). One of these is an essay for Foreign Affairs, “Regulatory Moneyball”. The title is borrowed from Michael Lewis’ superb Moneyball: the Art of Winning […] Read more
Much of the focus on the Supreme Court of the United States recently has been on the hot-button topic of same-sex marriage. But the Court has also released some interesting administrative law decisions in recent weeks. The End of Auer Deference: Administrative Interpretations of Regulations I previously posted some sceptical thoughts on the continuing applicability […] Read more
In Canada, it is gradually becoming clear that the Supreme Court wants reviewing courts to presume that the standard of review of administrative action is reasonableness. The Court has not been perfectly clear about its intentions, however, so there are still pockets of resistance (see my articles here and here for discussion). As I suggest […] Read more
In Sidney Shapiro, Elizabeth Fisher and Wendy Wagner’s fascinating article, they contrast the “rational-instrumental” model of administrative decision-making, which they describe as dominant, with the “deliberative-constitutive” model, which they prefer. If you are interested in the legitimacy of the administrative state, the article is a must-read. Under the former model, “agency accountability is ensured by […] Read more
My paper for this Saturday’s conference at the University of Ottawa in honour of Justice Charron is now available on SSRN. You can download it here. To whet your appetite, here is the abstract: In interpreting the “prescribed by law” requirement contained in section 1 of the Charter of Rights and Freedoms, Canadian courts have […] Read more
On May 10 next, we at U de M are hosting what we hope will be the first in a series of conferences on key concepts of the common law. To kick off, the conference on May 10, 2013 is Regulation and the Common Law. Our keynote speaker will be Gillian Metzger, the Stanley H. […] Read more
The hearing of the federal government’s appeal of the decision granting Québec an injunction to prevent the destruction of long-gun registry data and ordering the federal government to return data relating to Québec to the province finished up this morning.I did not make it to this morning’s hearing (made up of the tail end of […] Read more
A well-known rule of administrative law is delegatus non potest delegare: the beneficiary of a statutory power cannot delegate its exercise. This is only a rule of construction, though, and is subject to the famous Carltona exception, pursuant to which civil servants can act in the name of a minister named in a statute. A […] Read more