Mindful that Canadian administrative law may be in for one of its periodic paradigm shifts, and of a talk entitled “The Analytical Structure of Reasonableness Review” that I gave to the law clerks of the Federal Court and Federal Court of Appeal last month, I thought it would be opportune to post some thoughts on […] Read more

In his London School of Economics Ph.D. thesis, Dean Knight offers an interesting theoretical perspective on judicial review doctrine. Grouping writers and judges into four broad groups, ranging from those who prefer more formalistic, bounded approaches to those who embrace thorough contextual inquiry, he assesses each group against Lon Fuller’s ‘internal morality of law’. Knight’s […] Read more

The decision in Giroux c. Gauthier, 2016 QCCS 724 contains the first of what will likely be many judicial discussions of the effect of Quebec’s new Code of Civil Procedure (in force since January 1) on administrative law.* One of the measures taken was to combine all the judicial review remedies in the same provision, […] Read more

Canadian courts have generally been cautious about expanding the content of the record on judicial review. I am generally in favour of restraint (see e.g. here), as expanding the content of the record may have the effect of enticing courts to expand the scope of judicial review. But the factual matrix of Sobeys West Inc. […] Read more

I spoke last month on this topic at a conference organized by the National Judicial Institute. Some of you may be interested in the following, slightly amended synopsis of my remarks. I’ll have more to say on the last idea soon, but suffice it to say that there is a striking contrast between Rothstein J.’s […] Read more

Word filtered down from on high (literally: the University of Montreal is on a mountain and the central administration sits on its peak) today that my tenure application was approved by the University Council, effective June 1. This is very nice news of course but I am not fishing for compliments. I only mention it […] Read more

My colleague Matt Harrington and I had a lunchtime chat about Justice Scalia’s legacy at the University of Montreal last week. We focused on explaining Justice Scalia’s textualism and originalism, as well as his preference for rules over standards (see also this post). There has been no shortage of critical reflection on Justice Scalia’s life […] Read more

In the years from 2003 to 2008, a curious thing happened to Canadian administrative law: nothing. Between the landmark decisions of Dr. Q. and Ryan in 2003, which confirmed the primacy of the pragmatic and functional approach and its three standards of review (correctness, reasonableness and patent unreasonableness) and Dunsmuir in 2008, the Supreme Court […] Read more

British public lawyers live in interesting times. A long list of possible constitutional reforms has dominated their attention in recent times: devolution of powers, Scottish independence, human rights and the relationship with the European Court of Human Rights, membership of the European Union and, now, creation of a constitutional court. In the tumult, and especially […] Read more

From Antonin Scalia’s “Judicial Deference to Administrative Interpretations of Law“, easily the best ever introduction to an essay on administrative law: When I was invited to speak here at Duke Law School, I had originally intended to give a talk that refiected upon the relationship among the Bork confirmation hearings, the proposed federal salary increase, […] Read more