On Friday, the Supreme Court of Canada will hand down its decision in the “Nadon reference”. For further background — and my take on the key issues — you can download my submissions to the Senate Committee on Legal and Constitutional Affairs. Two posts by Michael Plaxton — here and here — also provide a […] Read more

I have posted Unreasonable Interpretations of Law to SSRN. Here is the abstract: Reasonableness has become the dominant standard of review of administrative action in Canada. Understanding what makes a decision unreasonable has become a critical issue for Canadian judges and jurists. The question I will address in this essay is: what does it mean […] Read more

The UK Supreme Court decided an important case on the law of nuisance last week: Coventry v. Lawrence, [2014] UKSC 13. One of the many important issues was whether planning permission is a defence to an action in nuisance.In his leading judgment, Lord Neuberger held that it is not: The grant of planning permission for […] Read more

David Feldman has posted “Error of Law and the Effects of Flawed Administrative Decisions and Rules” on SSRN. Here is the abstract: Over the last half-century, English administrative law and theory have increasingly paid lip-service to three propositions. (1) All errors in the course of making a decision or rule are to be regarded as […] Read more

In Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, Stratas J.A. added his voice to the chorus of judges urging deference on questions of procedural fairness. A choir composed of Bich J.A., Evans J.A. and Stratas J.A. cannot be drowned out by assertions of the orthodoxy that ‘correctness is the standard of […] Read more

Late last year, the Supreme Court of Canada derided “fashionable” claims by applicants for judicial review that a correctness standard should apply in the review of administrative decisions. Yet such claims continue to be made successfully before lower courts. Sometimes they are plausible (see here), sometimes they are not (see here, at para. 59). Clear […] Read more

In both Canada and the United States, considerable jurisprudential effort has been expended on identifying “standards of review” of administrative action. Standards of review refer to the tests applied to determine whether a court should strike down administrative decisions.Most of the time, when administrative lawyers speak of “deference” they have in mind a standard of […] Read more

The Law Society of Upper Canada (to the uninitiated, that’s the Ontario Bar Association) is holding its annual 6-Minute Administrative Lawyer conference next month. I’m doing the ‘Year in Review’ presentation. Here’s the abstract: I will discuss the leading Supreme Court of Canada (“the Court”) decisions of the one-year period bookended by the Six-Minute Administrative […] Read more

Unlike most well-adjusted people I do not make a habit of watching the Oscars. I do make a habit, however, of watching movies that were nominated for Oscars (this and the IMDB rating system largely dictate my entertainment choices). Last night, I sat through Dallas Buyers’ Club, which is tipped to win heavily this evening. […] Read more

In a mammoth recent paper on Chevron deference, Gary Lawson and Stephen Kam trace the origins of the doctrine: Making Law out of Nothing at All (2013), 65 Admin Law Review 1 (draft). The paper is ably reviewed on Jotwell by Linda Jellum. What I found most striking, in view of Canadian courts’ desire to […] Read more