Public lawyers may sometimes tend to think that deference is a phenomenon unique to cases involving judicial review of government action. A moment’s reflection should be enough to dispel that notion. For example, judges in civil trials regularly defer to expert witnesses (negligence being a particular case in point) and boards of directors; and appellate […] Read more

Readers may be interested in “The Scope and Meaning of Reasonableness Review“, a new article of mine on judicial review of administrative action which will appear shortly in the Alberta Law Review. (Apologies to RSS and email subscribers who have already received the notification: I hope to fix the ‘double post’ issue shortly.) It is […] Read more

I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year. This is the latest in a series of mini-posts. Download the whole essay here. Remedial Discretion Remedies have posed a problem for administrative law since waves of doctrinal […] Read more

The European Court of Justice’s recent ‘Right to be Forgotten‘ ruling has caused much ink to be spilled. Despite the significant criticism it has received, I think the decision was quite sensible, for reasons given here by Eric Posner. It continues to provoke interesting commentary. Consider the following description of the problem from Babak Siavoshy […] Read more

Two recent papers deal with some hard questions in the area of cost-benefit analysis. Here are two recurring problems: (a) deciding which costs and benefits to count and (b) how precisely to count some types of costs and benefits. For example, can ‘collateral’ effects of government action be excluded from consideration? Is it appropriate to […] Read more

Here are two contrasting Court of Appeal decisions relating to human rights decision-makers’ ability to hear late-filed complaints: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 and Izaak Walton Killam Health Centre v. Nova Scotia (Human Rights Commission), 2014 NSCA 18. In the latter, the decision-maker proceeded pursuant to […] Read more

I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year. This is the latest in a series of mini-posts. Download the whole essay here. Substantive Review In many jurisdictions it is now accepted that where an administrative decision-maker […] Read more

A well-written student note takes me to task for my interpretation of Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 SCR 5. Catalyst has not (yet) proved to be catalytic. It has not been applied to delegated legislation or decisions taken by other elected bodies. I unhesitatingly concede that Canadian courts have treated Catalyst […] Read more

I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year. This is the latest in a series of mini-posts. Download the whole essay here. Procedural Fairness It has long been understood that the rules of procedural fairness vary […] Read more

The legality of the appointment of Mainville J.A. to the Quebec Court of Appeal from the Federal Court of Appeal has been challenged. Several jurists have weighed in on the question: Hugo Cyr, Maxime St-Hilaire and Robert Décary* all take the view that a federal court judge cannot lawfully be appointed to a Quebec Court […] Read more