Administrative Law Matters
Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
Jurisdictional Error, Procedural Fairness and Advocacy by Tribunals
There is much to say about Samatar c. Canada (Procureur général), 2012 CF 1263, a case involving an apparent jurisdictional error, a flagrant breach of procedural fairness, and over-zealous advocacy on the part of an arm of the state.Martineau J. did not mince his words. In justifying the award of solicitor-and-client costs to the applicants, […] Read more
The Federal Court of Appeal on Inadequate Reasons
The Supreme Court of Canada took the (in my view) reasonable step in Newfoundland Nurses, 2011 SCC 62 of separating procedural review for failure to provide reasons from substantive review for reasonableness. One concern that might be voiced in response is that rolling a procedural right to reasons into substantive review may give too much […] Read more
Justice Stratas on Reasonableness and Context
Justice Stratas voiced some interesting thoughts on the meaning of reasonableness and context in Canada (Attorney General) v. Abraham, 2012 FCA 266:  For example, where the decision-maker is considering a discretionary matter that is based primarily on factual and policy matters having very little legal content, the range of possible, acceptable […] Read more
Section 1 of the Charter: A (Con)Way Out of the Morass?
Section 1 of the Charter of Rights and Freedoms provides that any infringement of a Charter right must be “prescribed by law”, a requirement that must be satisfied by the government before an application of the proportionality test. The jurisprudence on section 1 is very messy and has been criticized. Indeed, the Supreme Court of […] Read more
Did the Refugee Protection Division Confuse Two Files?
Pierre c. Canada (Citoyenneté et Immigration), 2012 CF 1249 is one of the strangest cases I have ever seen. A series of bizarre factual errors motivated de Montigny J. to strike the decision down, because it was possible that the Refugee Protection Division had confused two different files.The RPD noted in its decision that the […] Read more
Who Will Stand Up (in Court) for the Ospreys?
The Ospreys of the title are not the Welsh rugby franchise (often engaged in fierce competition with my home province of Munster), but rather the fish-eating birds of prey found near water. When unlawful government action threatens such creatures, they cannot go to court to defend themselves. Who can? The UK Supreme Court recently had […] Read more
Immigration Officer’s Academic Writing Did Not Cause a Reasonable Apprehension of Bias
The applicant in Francis v. Canada (Immigration and Citizenship), 2012 FC 1141 was concerned that she had not got a fair shake before the Refugee Protection Division, on the basis of comments made by the decision-maker in previous academic writings. He had suggested that the refugee protection system gave rise to anomalies, and cited the […] Read more
Lord Black’s Day at the Advisory Council for the Order of Canada
If honours were given for services to administrative law, Lord Black would be a strong candidate. His lawsuit against Prime Minister Jean Chrétien gave rise to an important decision on justiciability, Black v. Canada (Prime Minister), 54 OR (3d) 215. His more recent attempt to maintain his membership of the Order of Canada has prompted […] Read more
Rachel Barkow on Prosecutorial Administration
Rachel Barkow has an interesting new paper entitled Prosecutorial Administration. Her subject is institutional design. She argues that the prosecutorial imperatives of the U.S. Department of Justice have become pre-dominant, to the great detriment of three areas of regulation entrusted to the Department: corrections, clemency and forensics. Some of Barkow’s observations about administrative agencies with […] Read more
Keeping the Federal Government out of the Provincial Courts
In its 2010 decision in Telezone, the Supreme Court of Canada took a relatively relaxed approach to private law actions against the federal government in provincial court. The difficulty is that in some of these cases a court will have to adjudicate on the lawfulness — as a public law matter — of actions or […] Read more