deference | Page 2
Some Recent Scholarly Work on Doré v. Barreau du Québec
I have a long-standing interest in the Supreme Court of Canada’s decision in Doré v. Barreau du Québec, [2012] 1 SCR 395, 2012 SCC 12, in which the Court endorsed a deferential approach to administrative decisions infringing fundamental rights. See this paper, for example. One of the most intriguing issues post-Doré is what the Court […] Read more
Standard of Review on Questions of International Law: A Primer on Febles v Canada
On Thursday, the Supreme Court of Canada will release its decision on the appeal in Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324. I summarized the Federal Court of Appeal decision here. Here is a primer on one of the issues: whether courts should defer to administrative decision-makers on interpretations of international law. […] Read more
Investigating Process, Substance and Procedural Fairness
Canadian administrative law is different in many ways from that of other Commonwealth jurisdictions, but on one question it (for the most part) clings doggedly to an old mantra: procedural questions are for the courts alone to decide, without any deference to decision-makers. This orthodoxy has recently been challenged as a matter of principle. But […] Read more
The “Common Objective” of Courts and Administrators: Correctly Applying the Principles of Statutory Interpretation?
How should we describe what administrative decision-makers do when they interpret statutory provisions? In my view, they are making/interpreting/doing “law”, even if it is infused with policy considerations in a way that the judicial function is (arguably) not. Does it follow that they should perform this “law” function in the same way that courts do? […] Read more
Fusing Procedural and Substantive Review in Canada
This is the last extract from my forthcoming article, “Canada’s Bi-Polar Administrative Law: Time for Fusion“. I detail how procedural and substantive review might be fused and, in particular, why traditionalists should not flinch. Download the paper here. It is now necessary to consider how the two poles might be fused. One possibility is […] Read more
The Case for Deference on Questions of Procedural Fairness
In a forthcoming essay, “Canada’s Bi-Polar Administrative Law: Time For Fusion“, I argue that courts should defer to administrative decision-makers on questions of procedural fairness. In this extract, I develop an argument from first principles; in subsequent extracts, I will make an argument specific to Canada, and detail how a deferential approach might operate. Download […] Read more
Sorting out Refugee Appeals
Canadian decisions on internal appellate review are coming thick and fast. Another one arrived last week, with some media fanfare: Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. Here, Phelan J. gave the Refugee Appeal Division a very broad role indeed. Rebuking the Division for applying judicial review standards to an internal appeal, he […] Read more
The Scope and Meaning of Reasonableness Review
Questions continue to abound about the standard of review of administrative action in Canada. For something apparently simplified in Dunsmuir v. New Brunswick and subsequent cases, it provokes a great many questions. The key question now, in light of the “triumph” of reasonableness, is the scope and meaning of reasonableness review. To what does the […] Read more
Deference Within Agencies?
Once more unto the ‘internal standard of review’ breach. Do the principles regulating judicial review by courts of administrative decision-makers apply when there is an appeal within an agency, and if so, to what extent? I tackled this question last year in the context of the Refugee Appeal Division. Now, the Federal Court has pronounced […] Read more
Deference Across the Public-Private Divide
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