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Categories versus Rebuttable Presumptions: Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3

Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 is a long, complex and important decision on competition law. It also contains a spirited disagreement between Rothstein and Abella JJ. on the appropriate standard of review of determinations of law made by the Competition Tribunal. Oddly enough, I think both of them are right: […] Read more

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Justiciability of the Prerogative: Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4

The Federal Court of Appeal decision in Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4 on justiciability of international treaties, the prerogative in respect of foreign affairs, the duty to consult First Nations and the jurisdiction of the federal courts is hugely significant (first-instance decision noted here). At issue was a foreign investment promotion […] Read more

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Considering Charter Values: Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7267

As is well-known, the Supreme Court of Canada stated in Doré v. Barreau du Québec, [2012] 1 SCR 395 that administrative decision-makers must consider Charter values in the exercise of discretionary powers. However, this duty has recently been cast in very limited terms by a strong bench of Ontario’s Divisional Court in Iacovelli v. College […] Read more

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Building Legitimacy Brick by Brick

What follows is my contribution to a partly virtual book club organized by Osgoode’s Sonia Lawrence: the posts are collected here. The Round House is an incredibly rich and complex novel, a coming-of-age story told by a young Native American boy whose mother was brutally raped at the intersection between federal, state and reserve lines. […] Read more

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Rebottling Old Wine

A challenge for lawyers is to fit new concepts to old language. Law is in a constant state of flux, adapting always to new realities. Sometimes, however, doctrines change rapidly and without courts considering the knock-on effects on other doctrines. The problem of tribunal reconsiderations of their decisions is an example. Say tribunals may reopen […] Read more

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A Few Thank Yous

Some nice news today from the 2014 Clawbies. My blog won in the Best Law Professor Blog category and the judges (Jordan Furlong, Steve Matthews and Simon Fodden) had something nice to say: Administrative Law Matters, by Université de Montréal Assistant Professor Paul Daly, isn’t just the best law professor blog in the country; we […] Read more

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Judicial Review and Secrecy

A new year is almost upon us. Here is a provocative thought for 2015. Does more judicial review of government action mean that more judicial review will be conducted secretively? Over recent decades, the grounds on which official action can be challenged have increased in number and scope. Legitimate expectations and factual errors are now […] Read more