Fascinating decision here from the District Court for the District of Columbia. America’s National Labor Relations Board has been at the centre of controversy recently because of President Obama’s inability to appoint new members. Before he made recess appointments to restore the full complement of members, the Board took an important decision which would have […] Read more

One of the questions not broached by the Supreme Court of Canada in Doré (see my earlier post here) was what happens when the legislature has attempted to exclude consideration of the Charter by an administrative decision-maker. In a pair of decisions released in 2003, the Court made clear that where an administrative decision-maker has […] Read more

In a recent decision, Justice Stratas of the Federal Court of Appeal raised a host of questions about the applicability of the Supreme Court of Canada’s re-shaping of judicial review doctrine to decisions taken by discretionary decision-makers: [19]           I am inclined to find that the Director is subject to this “normal” or […] Read more

One of the reasons offered by the concurring judges in Multani for merging administrative review and constitutional review (at least when an individualized decision was challenged) was that keeping them separate and distinct would be confusing to lower courts and litigants. That view never seemed particularly compelling to me: lawyers and judges often make and […] Read more

The Supreme Court of Canada has been feverishly productive in the field of administrative law since the Fall of 2011, rendering decisions on standard of review (questions of law, jurisdictional error and labour arbitrators), the right to reasons, issue estoppel, attempts to pre-empt the administrative decision-making process, and review of municipal by-laws. Plenty of grist […] Read more

Some philosophical reflections, courtesy of Justice Martineau: [92]           The legal explanation for allowing two [differing] interpretations of the law, if reasonable, to stand is simply that courts must respect the legislator’s intention that such types of administrative decisions, which are protected by a privative clause, be not reviewed unless the tribunal has […] Read more

One of the components of the Federal Government’s omnibus budget bill, the Jobs, Growth and Long-term Prosperity Act, involves amendments to the Investment Canada Act. In certain circumstances, take-overs by foreign persons of Canadian corporations must be reviewed by the Minister for Industry and, if the Minister concludes that the proposed investment is not of […] Read more

From the Nova Scotia Court of Appeal comes a useful overview of the requirement to give reasons: [17]         In a series of cases, the Supreme Court of Canada has recognized the importance of reasons in various settings: e.g., Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. […] Read more