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

The power of courts to order interim remedies in judicial review proceedings was squarely in issue in Amalorpavanathan v. Ontario (Health and Long-Term Care), 2013 ONSC 4993. The subsequent decision on the merits (given orally: 2013 ONSC 5415) involved an interesting application of the doctrine of legitimate expectations.A group of physiotherapy clinics are to be […] Read more

Canadian administrative lawyers worry a lot about the standard of review. In many cases there is significant disagreement over whether the reasonableness standard or correctness standard should be applied. Occasionally, weary voices suggest that all this haggling over the standard of review is an unnecessary distraction from the merits of cases. An interesting perspective on […] Read more

Doping in sport is a scourge. Eradicating is not easy. The awards for successful doping are very high. Sporting organizations find themselves in a difficult position. Testing everyone and everything is not possible. And often, a plausible (though not necessarily truthful) excuse can be offered in defence of an athlete who has registered a positive […] Read more

The head of Québec’s Régie du logement was accused several years ago of playing fast and loose with statistics. He is alleged to have ordered that more recent cases be treated more quickly — to the detriment of older files in the system — in order to show the authority’s performance in a better light. […] Read more

The Supreme Court of Canada has repeatedly said since Dunsmuir that there is a category of ‘true’ questions of jurisdiction. When responding to these questions administrative decision-makers must answer correctly, or face substitution of judicial judgment by the courts. However, the Court has yet to identify a ‘true’ question of jurisdiction. This is not terribly […] Read more

An American visitor to Montreal recently asked me “What is the ‘record’ for judicial review in Canada?” I chuckled, said “It depends” and directed her to paragraph 48 of Dunsmuir. In Saskatchewan (Energy and Resources) v Areva Resources Canada Inc, 2013 SKCA 79 (which I have already blogged about here), the Ministry did not offer […] Read more

A recurring issue in the law of judicial review is the distinction between law and discretion. Where this matters the most is in substantive review: should a similar standard of reasonableness be applied to questions of law and exercises of discretion? The Supreme Court of Canada has been sceptical of attempts to distinguish between the […] Read more

Professor Paul Craig has posted “The Nature of Reasonableness Review” on SSRN. Here is the abstract: While there is a voluminous literature on proportionality, there is considerably less on reasonableness as a test for judicial review of discretionary determinations. This paper examines the nature of reasonableness as a test for judicial review of discretion in […] Read more

We have all been there. A vital transaction needs to be made (think course registration, ticket purchase, visa payment) but, as you sit there drumming your fingers impatiently on the table, you are greeted with the message: “Our System is Currently Unavailable”. Now imagine that you wanted to access the system in order to re-register […] Read more