The challenge to non-appointments to the Canadian Senate survived a motion to strike last week in Alani v. Canada (Prime Minister), 2015 FC 649. Harrington J. rejected — for the moment — government arguments based on justiciability and jurisdiction. On justiciability, Harrington J. concluded: [36]           Without a doubt there is a political […] Read more

There is a fascinating story in the New York Times about judicial decision-making, in particular, whether it is appropriate for judges to seek out the advice of their colleagues: Interviews with more than a dozen judges in Manhattan’s Federal District Court show that almost all have telephoned colleagues when they were puzzled by legal questions […] Read more

This is the fourth and final post excerpting from my paper on stare decisis in Canadian administrative law for the Canadian Institute for the Administration of Justice’s 2015 National Roundtable on Administrative Law (Moncton, Friday, May 22*): Consistency in Tribunal Decision-Making. You can read the first, second and third posts here, here and here. * This […] Read more

An old advertisement for Beamish, a tipple manufactured in my native Cork, not far from my alma mater, has the punchline: “Consistent, that’s why it’s different”. One of the advantages of relaxing the rules of stare decisis for administrative tribunals is that it allows decision-makers to change positions in response to shifts in facts, be they economic, […] Read more

This is the second post excerpting from my paper on stare decisis in Canadian administrative law for the Canadian Institute for the Administration of Justice’s 2015 National Roundtable on Administrative Law (Moncton, Friday, May 22*): Consistency in Tribunal Decision-Making. You can read the first and second posts here and here. * This event will be rescheduled […] Read more

This is the second post excerpting from my paper on stare decisis in Canadian administrative law for the Canadian Institute for the Administration of Justice’s 2015 National Roundtable on Administrative Law (Moncton, Friday, May 22): Consistency in Tribunal Decision-Making. You can read the first post here. —– Canadian courts have recently embraced the view that, sometimes, […] Read more

I will be speaking next Friday at the 2015 National Roundtable on Administrative Law organized by the Canadian Institute for the Administration of Justice. This year’s topic is Consistency in Tribunal Decision-Making and I will be kicking the day off with some thoughts on stare decisis. Here are Sections I and II of my draft […] Read more

My paper on Administrative Law Values is now available in revised (much shorter!) form on SSRN: download it here. Abstract: I focus in this essay on judicial review of administrative action, looking at the subject “from the inside, trying to make sense of lawyers’ reasons and arguments as they are actually presented and defended”.  Rather […] Read more

The Supreme Court of the United States decision in Perez v. Mortgage Bankers’ Association, 575 U.S. _____ (2015) (discussed here) is also notable for the concurring opinions of Justices Scalia and Thomas, which take aim at Seminole Rock deference. Pursuant to this concept, an administrative agency’s interpretation of its own regulations controls unless it is […] Read more

Reasonableness is fast becoming the dominant organizing principle of Canadian administrative law. In particular, Courts of Appeal around the country have been putting flesh on the bones of the skeletal definition given in Dunsmuir (see, e.g. here). The latest example is Delios v. Canada (Attorney General), 2015 FCA 117, a straightforward review of a labour […] Read more