Federal Courts Act
Against Balancing and Weighing: Strickland v. Canada (Attorney General), 2015 SCC 37
For some time, I have wanted to write about the prevalent tendency to describe the judicial method in public law cases as one of ‘weighing’ or ‘balancing’ competing interests. It seems to me that reference to weight and balance captures only a part of the judicial task in complex cases. In fact, there is a […] Read more
Justiciability of the Prerogative: Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4
The Federal Court of Appeal decision in Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4 on justiciability of international treaties, the prerogative in respect of foreign affairs, the duty to consult First Nations and the jurisdiction of the federal courts is hugely significant (first-instance decision noted here). At issue was a foreign investment promotion […] Read more
Judicial Musical Chairs II: the Constitutionality of Robert Mainville’s Appointment to the Quebec Court of Appeal
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
Breaking Out of Federal Court: Mission Institution v. Khela, 2014 SCC 24
Under the Federal Courts Act, the Federal Court has exclusive jurisdiction to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal. A notable absentee from this list is the writ of habeas corpus. Since its […] Read more
Keeping the Federal Government out of the Provincial Courts
In its 2010 decision in Telezone, the Supreme Court of Canada took a relatively relaxed approach to private law actions against the federal government in provincial court. The difficulty is that in some of these cases a court will have to adjudicate on the lawfulness — as a public law matter — of actions or […] Read more