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Limited Rights of Appeal: Constitutional Traditionalists
For the opening post in this series, see here. Constitutional traditionalists take a broad view of Crevier and a narrow view of legislative intent. For members of this camp, judicial review for substantive reasonableness and procedural fairness must always be available, on issues of law and issues of fact alike. The only situation in which […] Read more
Limited Rights of Appeal: Legislative Intentionalists
For the opening post in this series, see here. The legislative intentionalists take a narrow view of Crevier and a broad view of institutional design. In their view, judicial respect for legislative intent demands that partial restrictions on judicial review (such as appeals limited to questions of law or jurisdiction) be given effect, as long […] Read more
Extra-territorial Regulation: Sharp v. Autorité des marchés financiers, 2023 SCC 29
A fairly frequent problem in Canadian law is the application of regulatory statutes to individuals or businesses resident or established in another province. Think of a BC brokerage advising (badly) on mortgage transactions in Quebec, an Albertan providing inside information to a Manitoban in respect of stocks traded in Ontario or an online portal based in […] Read more
The Prospects for Candour in Canada: Why a Limited Record is Problematic
Having described in previous posts the limited content of the record for judicial review purposes in Canada (here and here), I turn now to critical analysis. I will suggest in this post that a limited record can undermine judicial review by preventing courts from performing their constitutionality duty of assessing the lawfulness of administrative action […] Read more
OBA Annual Update on Judicial Review
Justice Stratas and I will be presenting at the Ontario Bar Association’s Annual Update On Judicial Review tomorrow (registration for the webcast is here). Here is the bill of fare: The Supreme Court: Undue Delay, International Law and the Standard of Review Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 Society of Composers, Authors […] Read more
Vavilov On the Road
In the first year after Vavilov was released, I read pretty well every decision in which the Supreme Court of Canada’s reformulation of administrative law was cited. The result was “One Year of Vavilov” and a soon-to-appear chapter in Colleen Flood and Paul Daly eds., Administrative Law in Context, 4th ed. Since then, I have been less assiduous in […] Read more
Emergency Economic Powers in Canada: Bill C-13’s Crown Corporation
One of the most significant features of the Covid-19 pandemic has been the massive increase in spending by governments anxious to make up the economic shortfalls caused by the shutdowns intended to slow down the spread of the virus. Designing such programmes effectively, ensuring that the resources reach those who need them and putting robust […] Read more
Of Clarity and Context: R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22
The United Kingdom Supreme Court handed down its decision in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 this morning. There are four judgments: a plurality judgment by Lord Carnwath (with whom Lady Hale and Lord Kerr concur) and dissenting judgments by Lord Sumption (with whom Lord Reed concurs) and Lord Wilson. There is […] Read more
Threats to Stare Decisis: The Consistency Problem
This is the second post excerpting from my paper on stare decisis in Canadian administrative law for the Canadian Institute for the Administration of Justice’s 2015 National Roundtable on Administrative Law (Moncton, Friday, May 22*): Consistency in Tribunal Decision-Making. You can read the first and second posts here and here. * This event will be rescheduled […] Read more
Roundtable on Stare Decisis: Moncton, NB, Friday May 22
I will be speaking next Friday at the 2015 National Roundtable on Administrative Law organized by the Canadian Institute for the Administration of Justice. This year’s topic is Consistency in Tribunal Decision-Making and I will be kicking the day off with some thoughts on stare decisis. Here are Sections I and II of my draft […] Read more