I am happy to admit that, although I believe it is time for Canadian courts to follow the suit of several appellate judges and adopt a deferential approach to questions of procedural fairness, the question is not yet settled. Recently, though without mentioning the contrary jurisprudence in his own court, Nadon J.A. assumed a correctness […] Read more

A challenge for lawyers is to fit new concepts to old language. Law is in a constant state of flux, adapting always to new realities. Sometimes, however, doctrines change rapidly and without courts considering the knock-on effects on other doctrines. The problem of tribunal reconsiderations of their decisions is an example. Say tribunals may reopen […] Read more

Should courts defer to administrative decision-makers on procedural matters? As things stand (for the most part), judicial intervention is warranted whenever a decision-maker fails to live up to judicially developed conceptions of fairness. But this judicial supremacy sits uneasily with the modern, context-sensitive duty of fairness. Historically, automatic intervention whenever a decision-maker deviated from the […] Read more

It seems to be, post-Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 245. First, the facts. The Board conditionally approved a major pipeline project to be completed by Enbridge. There are various challenges to the decision pending before the courts. This challenge concerned a number of matters that could fairly be described as […] Read more

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

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