Should courts defer to administrative decision-makers on procedural matters? As things stand (for the most part), judicial intervention is warranted whenever a decision-maker fails to live up to judicially developed conceptions of fairness. But this judicial supremacy sits uneasily with the modern, context-sensitive duty of fairness. Historically, automatic intervention whenever a decision-maker deviated from the […] Read more

I spent most of today and yesterday in a colloquium on cooperative federalism, as part of the “G3” initiative that groups Université de Montréal, Université libre de Bruxelles and Université de Génève. I gave a talk on the gun registry case under reserve at the Supreme Court of Canada. One of the issues that interested […] Read more

There is a fascinating review of Canadian administrative law on reasonableness in Workplace Health, Safety and Compensation Commission v. Allen, 2014 NLCA 42. A received benefits for a workplace injury. These benefits were capped at 80% of actual earnings. A then retired and was to receive benefits “equal” to the pension he would have received. […] Read more

Here is an interesting variant on the ‘reasonable decision but dodgy reasoning’ problem I have raised recently: what if an administrative decision-maker takes a decision that is supported by statutory authority, but fails to mention the statutory authority in question? This is the scenario in EllisDon Corporation v. Ontario Sheet Metal Workers’ and Roofers’ Conference […] Read more

Several years ago, in a review of Andrew Ross Sorkin’s excellent review of the 2008 financial crisis, Too Big To Fail, I suggested: Enough is now known about humans’ cognitive tics to start trying to tame them. What if the regulators of financial institutions were required to undergo intensive and ongoing training in behavioural economics […] Read more

My preoccupation with the internal standard of review issue has led me to wonder whether it would even be constitutionally permissible for a Canadian legislature to require an administrative body to conduct judicial reviews. The idea is not entirely far-fetched: the UK’s new tribunal system has just this feature, with the Upper Tribunal required on […] Read more

My post on Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 has attracted many comments. Some readers are sympathetic to the Supreme Court of Canada. And, indeed, one may wonder what the practical effect is of standard-of-review discussions that sometimes border on the metaphysical. Should the Supreme Court of Canada not focus on resolving […] Read more

It seems to be, post-Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 245. First, the facts. The Board conditionally approved a major pipeline project to be completed by Enbridge. There are various challenges to the decision pending before the courts. This challenge concerned a number of matters that could fairly be described as […] Read more

Last calls for the year in review session Stratas J.A. and I are doing in Toronto next week. The event is close to a sell out, I am told, so register here if you are interested in coming along. If there are no seats left, or if you can’t make it to Toronto, there will […] Read more

[76]           Board hearings are not an open-line radio show where anyone can dial in and participate. Nor are they a drop-in center for anyone to raise anything, no matter how remote it may be to the Board’s task of regulating the construction and operation of oil and gas pipelines. So says Stratas […] Read more