Administrative Law Matters
Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
From Blogger
Interim Orders and Legitimate Expectations in Judicial Review in Canada
Paul Daly September 3, 2013
The power of courts to order interim remedies in judicial review proceedings was squarely in issue in Amalorpavanathan v. Ontario (Health and Long-Term Care), 2013 ONSC 4993. The subsequent decision on the merits (given orally: 2013 ONSC 5415) involved an interesting application of the doctrine of legitimate expectations.A group of physiotherapy clinics are to be […] Read more
From Blogger
Standard of Review: Merits or Not
Paul Daly August 30, 2013
Canadian administrative lawyers worry a lot about the standard of review. In many cases there is significant disagreement over whether the reasonableness standard or correctness standard should be applied. Occasionally, weary voices suggest that all this haggling over the standard of review is an unnecessary distraction from the merits of cases. An interesting perspective on […] Read more
From Blogger
Absolute Liability Rules in Administrative Law
Paul Daly August 28, 2013
Doping in sport is a scourge. Eradicating is not easy. The awards for successful doping are very high. Sporting organizations find themselves in a difficult position. Testing everyone and everything is not possible. And often, a plausible (though not necessarily truthful) excuse can be offered in defence of an athlete who has registered a positive […] Read more
From Blogger
Independence of Administrative Decision-Makers: No Protection from Independent Inquiries
Paul Daly August 22, 2013
The head of Québec’s Régie du logement was accused several years ago of playing fast and loose with statistics. He is alleged to have ordered that more recent cases be treated more quickly — to the detriment of older files in the system — in order to show the authority’s performance in a better light. […] Read more
From Blogger
The hopeless search for ‘true’ questions of jurisdiction
Paul Daly August 15, 2013
The Supreme Court of Canada has repeatedly said since Dunsmuir that there is a category of ‘true’ questions of jurisdiction. When responding to these questions administrative decision-makers must answer correctly, or face substitution of judicial judgment by the courts. However, the Court has yet to identify a ‘true’ question of jurisdiction. This is not terribly […] Read more
From Blogger
What is the Record for Judicial Review in Canada?
Paul Daly August 14, 2013
An American visitor to Montreal recently asked me “What is the ‘record’ for judicial review in Canada?” I chuckled, said “It depends” and directed her to paragraph 48 of Dunsmuir. In Saskatchewan (Energy and Resources) v Areva Resources Canada Inc, 2013 SKCA 79 (which I have already blogged about here), the Ministry did not offer […] Read more
From Blogger
The Thin Line between Law and Discretion
Paul Daly August 13, 2013
A recurring issue in the law of judicial review is the distinction between law and discretion. Where this matters the most is in substantive review: should a similar standard of reasonableness be applied to questions of law and exercises of discretion? The Supreme Court of Canada has been sceptical of attempts to distinguish between the […] Read more
From Blogger
Paul Craig — The Nature of Reasonableness Review
Professor Paul Craig has posted “The Nature of Reasonableness Review” on SSRN. Here is the abstract: While there is a voluminous literature on proportionality, there is considerably less on reasonableness as a test for judicial review of discretionary determinations. This paper examines the nature of reasonableness as a test for judicial review of discretion in […] Read more
From Blogger
Administrative Bodies Rectifying their Own Errors
We have all been there. A vital transaction needs to be made (think course registration, ticket purchase, visa payment) but, as you sit there drumming your fingers impatiently on the table, you are greeted with the message: “Our System is Currently Unavailable”. Now imagine that you wanted to access the system in order to re-register […] Read more
From Blogger
Groundhog Day: the Wiarton Willie Festival and the Scope of Municipal Conflicts of Interest Legislation
Big news in Québec at the moment is the attempt to remove the embattled mayor of Saint-Rémi. New legislation provides that elected municipal officials charged with certain criminal offences may be removed from office by a Superior Court judge. The judge has discretion in determining whether to remove the individual, which is a marked (and […] Read more