Canadian courts have sometimes described undeferential reasonableness review as “disguised correctness”, cases in which a court says it is applying a reasonableness standard but in fact performs its own analysis of the law and the facts to reach an independent conclusion that it labels ‘reasonable’ or ‘unreasonable’. Here are some examples of judicial uses of […] Read more

Commission des droits de la personne et des droits de la jeunesse c. Côté, 2015 QCCA 1544 is an instructive case on the role of the principles of statutory interpretation in unreasonableness analysis — and, moreover, a decision which also caused me to make a further update to this post. Here, the parents of an […] Read more

Now that all the fuss about his past life as a blogger has died down, it is safe to venture a few comments about Justice Russell Brown’s appointment to the Supreme Court. He replaces Rothstein J., who retires today, leaving a very large gap in the Court’s administrative law and economic regulation expertise. Brown J. […] Read more

As I have previously explained, I think it is wrong to measure administrative interpretations of law by reference to the principles of statutory interpretation. Sure, administrative decision-makers should be required to read statutory provisions intelligently and explain their conclusions in terms of statutory language and objectives, but they should not be required to master these […] Read more

My post on Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 has attracted many comments. Some readers are sympathetic to the Supreme Court of Canada. And, indeed, one may wonder what the practical effect is of standard-of-review discussions that sometimes border on the metaphysical. Should the Supreme Court of Canada not focus on resolving […] Read more

Regular readers will know that I have no fondness for the idea that the “common objective” of courts and administrative decision-makers is the proper application of the principles of statutory interpretation. In part, my position is that it is unrealistic to expect administrative decision-makers to apply these principles. Some empirical doubt is cast on that […] Read more

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

There are shades of the Hart vs. Fuller debate in the disagreement between Scalia J. and Breyer J. in last week’s greenhouse gases case: UARG v. EPA. As part of a much wider debate about the relationship between law and morality, Hart and Fuller jousted over a rule prohibiting vehicles in the park. To simplify […] 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

A partial answer from the Nova Scotia Court of Appeal: yes.In McIntyre v. Nova Scotia (Community Services), 2012 NSCA 106, the applicant’s spouse had received a lump sum pension benefit, which meant that she had received an “overpayment” of benefits. There was no doubt that there had been an “overpayment” within the meaning of the […] Read more