Mind the Gap: Regulating End-of-Life Care in a Federation
Tomorrow, the Supreme Court of Canada hears a challenge to the federal criminal law prohibition on assisted suicide: Carter v. Canada. This law was upheld narrowly in 1993 (Rodriguez v. British Columbia (Attorney General),  3 SCR 519), but the Court is being asked to take a fresh look in light of changed circumstances. For […] Read more
Extra Time at the Divisional Court: the Wide Net of Judicial Review
Readers may remember my post late last year on an Ontario case refusing judicial review of a school’s decision to expel a student, with the knock-on consequence that the student was unable to graduate: Setia v. Appleby College, 2013 ONCA 753. They may also be interested in suggesting how one can reconcile that case with […] Read more
What Should Public Lawyers Do?
That is the title of a famous/notorious essay by political scientist Brendan O’Leary reviewing Paul Craig’s Public Law and Democracy in the UK and the USA. O’Leary attacked Craig’s book, not so much for its content but for its very mission: to draw lessons for public lawyers from political science and political philosophy.* The basic […] Read more
Did Dunsmuir Simplify the Law on Judicial Review?
My aversion to the Supreme Court of Canada’s recalibration of administrative law doctrine in Dunsmuir v. New Brunswick is well known: in my view, the Dunsmuir approach simply sweeps a whole lot of substantive analysis under a formal rug. But I thought I would nonetheless ask the question: did Dunsmuir simplify the law on judicial […] Read more
Court Fees, Constitutional Rights and the Common Law
In a remarkable decision yesterday, the Supreme Court of Canada struck down British Columbia’s regime of court fees as unconstitutional: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59. A litigant was faced with a $3,600 bill for scheduling a 10-day trial. She could not pay the court fees — […] Read more
Investigating Process, Substance and Procedural Fairness
Canadian administrative law is different in many ways from that of other Commonwealth jurisdictions, but on one question it (for the most part) clings doggedly to an old mantra: procedural questions are for the courts alone to decide, without any deference to decision-makers. This orthodoxy has recently been challenged as a matter of principle. But […] Read more
Putting the Genie back in the Bottle: the Growth of Substantive Review
In his plenary paper at the Public Law Conference, Mark Aronson discussed the growth of substantive review in Australia, a phenomenon that can be glimpsed in most common-law jurisdictions. Mark gave three reasons for growth: 1. The rise of reasons (as a requirement imposed by statute or common law, or, I would add, self-imposed for […] Read more
Beware the Artful Pleader: the Public-Private Divide
Canada distinguishes between public law and private law. Judicial review of administrative action is kept separate from the law of tort, contract, property and equity. In an important 2010 decision (Canada (Attorney General) v. TeleZone Inc.,  3 SCR 585, 2010 SCC 62), the Supreme Court of Canada signaled that the importance of the distinction […] Read more
Affidavits on Judicial Review: What’s New is Old
I have been known to complain about courts and administrators supplementing the administrative record after a decision has been made. In a case last year, a Canadian appellate court deferred to an interpretation of law offered in an affidavit. I was reminded at the Public Law Conference that the use of affidavits to bolster the […] Read more
The Unity of Legitimate Expectations?
One of the panels at the inaugural Public Law Conference last week (see my previous post) was on legitimate expectations. I was keenly interested, as I have agreed to contribute a chapter to a forthcoming (early 2016) collection on legitimate expectations in the common law world. Cora Hoexter was sympathetic to legitimate expectations as she […] Read more