From the sporting world, an excellent illustration of the administrative law doctrine of relative nullity. Last week, in a match against Chelsea, Arsenal defender Gabriel Paulista was sent off for kicking out at Chelsea striker Diego Costa. Though I may be showing my colours here, it was a preposterous decision: Gabriel’s actions were innocuous compared […] Read more

The Supreme Court of Canada released a very important decision on tribunal standing today: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, a utilities regulation case concerning the Board’s decision to disallow salary costs even though a substantial portion was fixed in place by a binding collective agreement. The Court upheld the […] Read more

(This is the sixth and last in a series of posts, a day early this time because I hope to comment tomorrow on two very important administrative law decisions from the Supreme Court of Canada. You can also read the first, second, third, fourth and fifth installments. Download my draft paper in its entirety here.) […] Read more

Apologies for the title. Mentioning issue estoppel would have caused my page views to crash through the floor, which would have been a pity because there is a recent case that raises an interesting technical point about issue estoppel and standard of review. In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 the […] Read more

There is a busy Fall ahead for your erstwhile blogger! First, a plug for a new professional development/networking programme we are starting at U de M: les Rendez-vous juridiques. The first is a pre-election special on October 5, featuring Yolande James and my colleagues Jean Leclair, Noura Karazivan and Hugo Tremblay on a variety of […] Read more

My article on administrative appeals, Les appels administratifs au Canada is now published in the Canadian Bar Review. Subscribers can access it here. There is an open-access version on SSRN. The article has already provoked interest (see Hachey Livestock Transport Ltd. v. Canada (Minister of Agriculture and Agri-Food), 2015 CART 19, at para. 37 ff) […] Read more

(This is the fifth in a series of posts. Read the first, second, third and fourth. The draft can be downloaded in its entirety here.) One very useful way to conceptualize the administrative state is to perceive it as a spectrum, along which, as Justice LeBel put it in Imperial Oil, the requirements of the […] Read more

Over at Double Aspect, Léonid Sirota has a typically interesting reaction to my post on Brown J.’s appointment to the Supreme Court of Canada. He begins: In a (somewhat) recent post commenting on Justice Brown’s appointment to the Supreme Court, Paul Daly wrote about “an interesting paradox” in the world of judicial review of decisions by […] Read more

Has the Supreme Court of Canada encouraged lower courts to employ correctness review of certain legal questions? Its recent decisions in Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 and Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, both cases where the Court decided correctness review would be appropriate (see my posts […] Read more

In this excellent study of how judges have implemented bills of rights in three common law jurisdictions (Canada, the UK and South Africa), Robert Leckey carefully dismantles many of the wilder claims about judicial review of legislative action. Replacing the cry of “judicial activism” with the more muted “judicial agency”, he identifies remedial discretion as […] Read more