With Justice Morris Fish’s retirement, the federal government must appoint a new judge from the province of Québec to the Supreme Court of Canada. A shortlist of three names is lying on the Prime Minister’s desk. Among them is thought to be Justice Bich of the Québec Court of Appeal. I spoke with the Globe […] Read more

Audrey Macklin sent on some perceptive, though critical, comments on my post on last week’s Supreme Court of Canada decision in Divito. She kindly allowed me to share them: 1. I agree with your preference for the minority view on the breach of s. 6(1). If you are right that an inchoate appeal to positive/negative […] Read more

In Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, handed down yesterday, the Supreme Court of Canada was unanimous in upholding the International Transfer of Offenders Act against (a long-shot) constitutional challenge. But the judges mapped out two different routes to that conclusion, evidence I think of difficulty in tracing the contours […] Read more

Where disclosure of documents would be detrimental to the public interest, courts have the power to refuse it (see e.g. here). So-called public interest immunity is a hugely important topic, especially where the powers of public bodies are concerned. The issue very recently divided a very strong bench of the Federal Court of Appeal in […] Read more

I have posted previously about the Irish courts’ preference for a narrow approach to judicial review of administrative action. Another recent example is Walsh v. Revington, [2013] IEHC 408. This time, the judgment is useful as a means of throwing into contrast formal and deferential approaches to judicial review. A Canadian court, I suspect, would […] Read more

The Supreme Court of Canada has granted leave in National Gallery of Canada v. Canadian Artists’ Representation, 2013 FCA 64. This has the potential to be a very interesting administrative law case. I think that the majority of the Federal Court of Appeal was wrong and hope that the Supreme Court will favour the approach […] Read more

I don’t want to add too much to the hubbub about the Charter of Values that Québec’s nationalist minority government ‘unveiled‘ yesterday. The basic idea is that religious neutrality is to be required in the public sphere (but there are numerous exceptions). I have a couple of administrative-law-related points.One thing that drew my attention yesterday […] Read more

Lorne Sossin and Jamie Baxter have posted on SSRN their paper on Ontario’s approach to reforming administrative justice: Claimants who come to administrative tribunals in Canada, as elsewhere, expecting a convenient forum to resolve their problems may discover that institutional resources and expertise, their own knowledge of the system, and their statutory entitlements and legal […] Read more

An interesting new paper by Michigan’s Nicholas Bagley: The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it […] Read more

Canadian courts have recently begun to recognize a “duty to consult” Aboriginal peoples in respect of government decisions that may affect their rights. Precisely when this duty is triggered, and against which organs of government, is an important question. In Hupacasath First Nation v. Canada (Foreign Affairs), 2013 FC 900, the claim was that the […] Read more