Ronald Dworkin gave a good example to illustrate what he called “strong” and “weak” discretion. Imagine a sergeant A who is told to pick “any five men” for a mission. Contrast her with a sergeant B told to pick “the five most experienced men”. One has strong discretion, the other weak.Dworkin’s purposes were not those […] 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

In Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, handed down yesterday, the Supreme Court of Canada was unanimous in upholding the International Transfer of Offenders Act against (a long-shot) constitutional challenge. But the judges mapped out two different routes to that conclusion, evidence I think of difficulty in tracing the contours […] Read more

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

Given the recent discussion of the constraints law places — or doesn’t place — on administration, I think Executive Order — Improving Critical Infrastructure Cybersecurity is noteworthy. Even though President Obama is not under any duty to follow the strictures of the Administrative Procedure Act in issuing executive orders, the hallmarks of administrative law can […] Read more

Justice Stratas voiced some interesting thoughts on the meaning of reasonableness and context in Canada (Attorney General) v. Abraham, 2012 FCA 266: [44]           For example, where the decision-maker is considering a discretionary matter that is based primarily on factual and policy matters having very little legal content, the range of possible, acceptable […] Read more

If you walk through the city centre streets of Montreal, you could well be walking along any street in North America, such is the predominance of big-name brands. This has long been a bone of contention for Quebeckers. Protest marches are not uncommon. Symbolically, the issue is of great importance, all the more so given […] Read more

In passing in its otherwise unremarkable decision in Pastore v. Aviva Canada Inc., 2012 ONCA 642, the Ontario Court of Appeal had something interesting to say about reasonableness. Feldman J.A. (with whom Rosenberg J.A. and Swinton J. agreed) commented as follows: [59]      Again, applying the Dunsmuir test for reasonableness, the delegate engaged in a […] Read more

I have previously blogged about the place of precedent in modern Canadian administrative law. The basic idea is not difficult to grasp. In Canada there is no presumption that there is a “right” answer to any question of law or discretion that arises before administrative bodies. Accordingly, administrative bodies are not bound by their previous […] Read more

Ireland’s National Asset Management Agency won a High Court legal battle against Treasury Holdings earlier this week, but it may end up losing the war. Finlay Geoghegan J.’s judgment, [2012] IEHC 297, cannot have been well received at NAMA headquarters. Over at NAMA Wine Lake, the editors wonder out loud “if indeed the Agency is […] Read more