Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 is a long, complex and important decision on competition law. It also contains a spirited disagreement between Rothstein and Abella JJ. on the appropriate standard of review of determinations of law made by the Competition Tribunal. Oddly enough, I think both of them are right: […] Read more
The Federal Court of Appeal decision in Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4 on justiciability of international treaties, the prerogative in respect of foreign affairs, the duty to consult First Nations and the jurisdiction of the federal courts is hugely significant (first-instance decision noted here). At issue was a foreign investment promotion […] Read more
The English courts have in recent decades recognized a common law duty to consult as an aspect of the duty of fairness. It was the subject of a comprehensive treatment by the Supreme Court in R. (Moseley) v. London Borough of Haringey, [2014] UKSC 56, though it is not clear whether Lord Wilson’s more expansive […] Read more
As is well-known, the Supreme Court of Canada stated in Doré v. Barreau du Québec, [2012] 1 SCR 395 that administrative decision-makers must consider Charter values in the exercise of discretionary powers. However, this duty has recently been cast in very limited terms by a strong bench of Ontario’s Divisional Court in Iacovelli v. College […] Read more
What follows is my contribution to a partly virtual book club organized by Osgoode’s Sonia Lawrence: the posts are collected here. The Round House is an incredibly rich and complex novel, a coming-of-age story told by a young Native American boy whose mother was brutally raped at the intersection between federal, state and reserve lines. […] Read more
A challenge for lawyers is to fit new concepts to old language. Law is in a constant state of flux, adapting always to new realities. Sometimes, however, doctrines change rapidly and without courts considering the knock-on effects on other doctrines. The problem of tribunal reconsiderations of their decisions is an example. Say tribunals may reopen […] Read more
Some time ago, I was critical of a decision of the Court of Appeal for England and Wales that permitted the executive to fetter the prerogative. I had missed the Supreme Court’s endorsement of this analysis last summer: R. (Sandiford) v. Foreign and Commonwealth Secretary, [2014] UKSC 44. Lord Carnwath and Lord Mance put the […] Read more
Felix Frankfurter once described jurisdiction as “a verbal coat of too many colours”. Exhibit #4579009 is Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499, which features three sets of reasons on tribunals’ authority to reopen closed decisions (though the concurring reasons of Goepel J.A. contain mostly a brief treatment of the merits […] Read more
Some nice news today from the 2014 Clawbies. My blog won in the Best Law Professor Blog category and the judges (Jordan Furlong, Steve Matthews and Simon Fodden) had something nice to say: Administrative Law Matters, by Université de Montréal Assistant Professor Paul Daly, isn’t just the best law professor blog in the country; we […] Read more
A new year is almost upon us. Here is a provocative thought for 2015. Does more judicial review of government action mean that more judicial review will be conducted secretively? Over recent decades, the grounds on which official action can be challenged have increased in number and scope. Legitimate expectations and factual errors are now […] Read more