A vigorous debate erupted in the comments to a recent post on deference on questions of procedural fairness. Recently, doctrinal orthodoxy has been challenged by several Canadian judges (a challenge based on Canadian developments but which ought also to be on the radar of those overseas) who have contended that procedural questions can no longer […] Read more

As you probably know by now, the Supreme Court of Canada ruled on Friday that federal court judges are not eligible for appointment to its three ‘Quebec seats’: Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. Although retrospective legislation was introduced after the appointment of Justice Marc Nadon to the Court, […] Read more

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

The Supreme Court of Canada released a fascinating administrative law decision this morning: McLean v. British Columbia (Securities Commission), 2013 SCC 67. The majority reasons were written by Moldaver J.; Karakatsanis J. wrote a set of concurring reasons.The facts are straightforward. M entered into a settlement agreement with the Ontario Securities Commission in 2008, in […] Read more

Traditionally courts have seen themselves as the guardians of fair procedures. The substance of administrative decisions is for the decision-makers: they are the ones entrusted by the legislature with making decisions, and they have the expertise to do so. Courts have been much less deferential in addressing the processes by which those decisions are reached. […] Read more

I have posted previously about the Irish courts’ preference for a narrow approach to judicial review of administrative action. Another recent example is Walsh v. Revington, [2013] IEHC 408. This time, the judgment is useful as a means of throwing into contrast formal and deferential approaches to judicial review. A Canadian court, I suspect, would […] Read more

Not so long ago, I posted on “Deference and Reasonableness“. I have also just posted some thoughts on rationality. It is quite timely, then, that I recently came across the reasons of Robertson J.A. in Small v. New Brunswick Liquor Corporation, 2012 NBCA 53, a case decided last summer. They deserve careful reading by anyone […] Read more

In his dissent in Arlington v. FCC (noted here), Chief Justice Roberts decried the rise and rise of the administrative state. This criticism nourished an op-ed in the Washington Post by George Washington University Law School’s Jonathan Turley. Here is a taste: The rise of the fourth branch has been at the expense of Congress’s […] Read more

Should courts defer to administrative decision-makers’ interpretations of the limits of their own statutory authority? The Supreme Court of the United States finally answered that question in the affirmative today, in City of Arlington v. Federal Communications Commission. I think the majority is absolutely right, as I explain below. Indeed, Scalia J.’s majority opinion is […] Read more

In an important decision yesterday in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, the Supreme Court of Canada upheld against constitutional challenge s. 14 of the Saskatchewan Human Rights Code (albeit with slight modifications).  The legislation provides for private parties to make complaints to a human rights tribunal; s. 14 allows the tribunal […] Read more