Administrative Law Matters
Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
From Blogger
David Feldman on the Effects of Invalid Decisions (the Void/Voidable Distinction): the Utility of Principles in Administrative Law
David Feldman has posted “Error of Law and the Effects of Flawed Administrative Decisions and Rules” on SSRN. Here is the abstract: Over the last half-century, English administrative law and theory have increasingly paid lip-service to three propositions. (1) All errors in the course of making a decision or rule are to be regarded as […] Read more
From Blogger
Deference on all Types of Procedural Fairness Question? Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59
In Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, Stratas J.A. added his voice to the chorus of judges urging deference on questions of procedural fairness. A choir composed of Bich J.A., Evans J.A. and Stratas J.A. cannot be drowned out by assertions of the orthodoxy that ‘correctness is the standard of […] Read more
From Blogger
Curbing ‘Coherence’ as a Reason for Correctness Review in Canadian Administrative Law
Late last year, the Supreme Court of Canada derided “fashionable” claims by applicants for judicial review that a correctness standard should apply in the review of administrative decisions. Yet such claims continue to be made successfully before lower courts. Sometimes they are plausible (see here), sometimes they are not (see here, at para. 59). Clear […] Read more
From Blogger
Deference, Weight and Procedural Fairness
In both Canada and the United States, considerable jurisprudential effort has been expended on identifying “standards of review” of administrative action. Standards of review refer to the tests applied to determine whether a court should strike down administrative decisions.Most of the time, when administrative lawyers speak of “deference” they have in mind a standard of […] Read more
From Blogger
Year in Review: the 6-Minute Administrative Lawyer
The Law Society of Upper Canada (to the uninitiated, that’s the Ontario Bar Association) is holding its annual 6-Minute Administrative Lawyer conference next month. I’m doing the ‘Year in Review’ presentation. Here’s the abstract: I will discuss the leading Supreme Court of Canada (“the Court”) decisions of the one-year period bookended by the Six-Minute Administrative […] Read more
From Blogger
Administrative Law Matters at the Movies: a Whimsical Post for Oscar Night
Unlike most well-adjusted people I do not make a habit of watching the Oscars. I do make a habit, however, of watching movies that were nominated for Oscars (this and the IMDB rating system largely dictate my entertainment choices). Last night, I sat through Dallas Buyers’ Club, which is tipped to win heavily this evening. […] Read more
From Blogger
Lawson and Kam on the Development of Chevron Deference
Paul Daly February 27, 2014
In a mammoth recent paper on Chevron deference, Gary Lawson and Stephen Kam trace the origins of the doctrine: Making Law out of Nothing at All (2013), 65 Admin Law Review 1 (draft). The paper is ably reviewed on Jotwell by Linda Jellum. What I found most striking, in view of Canadian courts’ desire to […] Read more
From Blogger
David Miranda and the Constraints of the “Prescribed by Law” Requirement: Miranda v. Home Secretary, [2014] EWHC 255
Paul Daly February 20, 2014
Laws L.J. delivered the judgment of the Divisional Court yesterday in Miranda v. Home Secretary, [2014] EWHC 255, a judgment explained by Rosalind English and Carl Gardner, and aspects of which have also been discussed by Fiona de Londras and Colin Murray. Miranda, en route to Berlin to share confidential information with a journalist, was […] Read more
From Blogger
Deference outside a Decision-Maker’s ‘Home’ Statute: Bernard v. Canada (Attorney General), 2014 SCC 13
Paul Daly February 12, 2014
There is another aspect of Bernard v. Canada (Attorney General), 2014 SCC 13 (discussed here) that is of general interest. When the matter was remitted to it, the Public Service Labour Relations Board had to address whether its order that an employer had to disclose home contact information of non-union employees was compatible with privacy […] Read more
From Blogger
Giving Directions to Administrative Decision-Makers (for Self-Represented Litigants): Bernard v. Canada (Attorney General), 2014 SCC 13
Paul Daly February 11, 2014
Bernard v. Canada (Attorney General), 2014 SCC 13 represents the end of a long struggle for Ms. Bernard, an employee of the Canadian revenue service who challenged — without counsel — her employer’s ability to send her personal contact details to a union. A decision ordering disclosure was ultimately upheld as reasonable and constitutional but […] Read more