I am happy to admit that, although I believe it is time for Canadian courts to follow the suit of several appellate judges and adopt a deferential approach to questions of procedural fairness, the question is not yet settled. Recently, though without mentioning the contrary jurisprudence in his own court, Nadon J.A. assumed a correctness […] Read more

I can’t resist passing on the postscript to Norman Siebrasse’s excellent post on standard of review issues raised in a recent (and interesting) patent case at the Federal Court: Finally, on a personal note, Dunsmuir was the clerk of the court in Fredericton, New Brunswick (the full name of the case is Dunsmuir v New […] Read more

Here is an interesting Supreme Court of the United States opinion on a statutory requirement to give reasons: T-Mobile South, LLC v. City of Roswell, 574 U.S. ___ (2015). T-Mobile wanted to build a cell-phone tower in Roswell. The City refused to give permission: the elected members of the Council adopted a motion to deny […] Read more

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