A Brief History of (Recent) Time: the Struggle for Deference in Canada
A major collection on substantive judicial review of administrative action will appear shortly under Hart Publishing’s imprint. Edited by Mark Elliott and Hanna Wilberg, The Scope and Intensity of...
View ArticleNorms, Facts and Metaphors: the Fabulous Baker Factors and other Tall...
When judges strike down administrative decisions, they take a step that must be justifiable and justified in normative terms. I suppose we all agree on that. Yet whole swathes of administrative law...
View ArticleProsecutorial Discretion and Assisted Suicide, Again
Purely coincidentally, the day after Quebec passed its “right to die” legislation, the Supreme Court of Canada released an important decision on prosecutorial discretion: R. v. Anderson, 2014 SCC 41....
View ArticleA Strange Concurring Opinion by Chief Justice Roberts
The Supreme Court of the United States released Scialabba v. Cuellar de Osorio this week, an attempt to pick apart the entrails of a poorly drafted immigration provision designed to deal with the...
View ArticleCharter Application by Administrative Tribunals: Statutory Interpretation
Canadian courts have come to accept that the constitution is not some sort of holy grail that administrative decision-makers should not touch. As it is the supreme law of the land, its writ ought to...
View ArticleInterpretation and Context
Here is a great passage from an Australian case (Mainteck Services v. Stein Heurtey) on contractual interpretation: What is the legal meaning of a promise to sell “my Dürer drawing”, if the vendor’s...
View ArticleJudicial Musical Chairs
Some have suggested that the announcement on Friday that Mainville J.A. has been appointed from the Federal Court of Appeal to the Quebec Court of Appeal suggests that he will be appointed to fill one...
View ArticleStare Decisis in Administrative Law
Here is a problem for deferential approaches to judicial review: what about an administrative decision that is a reasonable resolution of a particular case but which is reached by flawed logic? If the...
View ArticleCommon Law Restraints on Discretionary Powers: S156-2013 v. Minister for...
An old debate in administrative law concerns the appropriate role of courts in imposing common law restrictions on discretionary powers. For example, when a statute says “X may, in his absolute...
View ArticleAttaquer une décision en révision judiciaire
I gave a presentation a few weeks ago for the Canadian Institute. An odd subject for a partisan of deference like myself, but I enjoyed putting a paper together. Practitioners may find it provides...
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