Administrative Law Matters
Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
Reasons and Reasonableness in Administrative Law
In describing the deferential standard of review of reasonableness in Dunsmuir v. New Brunswick, the Supreme Court of Canada was very eloquent. Where a standard of review of correctness is appropriate, the reviewing court substitutes its judgment for that of the initial decision-maker. But where deference is owed, A court conducting a review for reasonableness […] Read more
Why Destroying the Long-Gun Registry Data is Unconstitutional
The literature on the establishment and operation of administrative agencies is voluminous. Even the destruction of agencies – deregulation – has inspired eloquent words. Less ink has been spilled about the consequences of deregulation. The impending argument over the abolition of the Long-Gun Registry is an example of destruction and deregulation giving rise to litigation. […] Read more
The Rights of Corporations in Administrative Law
An ever-present issue in debates over constitutional law doctrine in the United States is whether corporations should be capable of enjoying constitutional rights. Concern about the equation of natural and legal persons is not unique to American jurists, however. A federal court judge in Canada has stated in strong terms that corporations are not entitled […] Read more
Aboriginal Rights and Administrative Law
Via Canadian Appeals Monitor, word that the Supreme Court of Canada has granted leave to appeal from the decision of the British Columbia Court of Appeals in Sally Behn v. Moulton Contracting Ltd. The primary issue here will be whether individual members of a First Nation can rely on a breach of the duty to […] Read more
Of Tongues and Teeth: Sliding Scales in Judicial Review
The UK Supreme Court’s decision of last week in Humphreys v Revenue Commissioners puts me to thinking about sliding scales. These are quite common in public law. At base, the idea is that greater scrutiny will be paid to decisions (or statutory provisions) in some circumstances, and less in others. Old world administrative lawyers will […] Read more
Interesting paper here from Arden Rowell (University of Illinois). One of the difficulties with regulators performing cost-benefit analyses lies in determining what should go into the analysis. Some things we can count quite easily: to use Rowell’s example, the cost of installing rear-view cameras on cars; and the benefits in terms of lives saved (although […] Read more
Henry VIII vit encore!
Much hubbub this morning at the Assemblé Nationale as the deputies debate legislation designed to end the student boycott – excellent coverage of the marathon législatif from Radio-Canada here. Some of the hubbub relates to a “Henry VIII” clause, contained in Article 9 of the draft legislation. This allows the Minister for Education to take […] Read more
C’est qui le maître chez l’arbitre?
A challenge, perhaps, from the Québec Superior Court to the established rule that tribunals are masters of their own procedures, as long as they do notviolate the rules of natural justice. A challenge, certainly, to anyone who thinks the distinction in administrative law between matters of procedure (for reviewing courts) and matters of substance (for […] Read more
Why Study Law?
McGill’s Professor Rod Macdonald is one of Canada’s leading administrative law scholars and also a big thinker about the role and place of legal education. He gave a speech at the London School of Economics a few months ago, which he has now posted on SSRN. A taste: Here is my first claim. Studying law […] Read more
80% of life is just showing up
Fascinating decision here from the District Court for the District of Columbia. America’s National Labor Relations Board has been at the centre of controversy recently because of President Obama’s inability to appoint new members. Before he made recess appointments to restore the full complement of members, the Board took an important decision which would have […] Read more