Canadian courts have sometimes described undeferential reasonableness review as “disguised correctness”, cases in which a court says it is applying a reasonableness standard but in fact performs its own analysis of the law and the facts to reach an independent conclusion that it labels ‘reasonable’ or ‘unreasonable’. Here are some examples of judicial uses of […] Read more

Blogging is likely to be light for the next couple of weeks, as my list of speaking engagements implies. There is also the small matter of a graduation ceremony on November 2 for which my office is responsible, as well as the usual array of administrative and writing commitments. If you have not already registered […] Read more

I will be contributing a chapter, with the working title, “A Pluralist Account of Deference and Legitimate Expectations” to a forthcoming Hart Publishing collection edited by Matthew Groves and Greg Weeks. In the fourth and final section of my draft I apply my pluralist approach to three controversial areas of doctrine: knowledge and reliance, substantive […] Read more

It is boom time in Canada for cases involving the constitutionality of regulatory regimes. Joining the recent decision in Guindon (see here) is last week’s judgment in Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46. At issue here was British Columbia’s regime of roadside breathtesting of drivers. Driving suspensions are imposed, with […] Read more

I will be contributing a chapter, with the working title, “A Pluralist Account of Deference and Legitimate Expectations” to a forthcoming Hart Publishing collection edited by Matthew Groves and Greg Weeks. In the third section of my draft I explain my pluralist approach. As always, comments are very welcome. Download the draft in its entirety […] Read more

Kevin Stack has an excellent new paper entitled “Purposivism in the Executive Branch: How Agencies Interpret Statutes“. Here is the abstract: After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question […] Read more

Commission des droits de la personne et des droits de la jeunesse c. Côté, 2015 QCCA 1544 is an instructive case on the role of the principles of statutory interpretation in unreasonableness analysis — and, moreover, a decision which also caused me to make a further update to this post. Here, the parents of an […] Read more

Last week’s decision of the European Court of Justice in Schrems v. Data Protection Commissioner, C-362/14 deemed invalid an important self-certification regime for companies transferring personal data to the United States from the European Union. Several aspects of the decision are of general interest. Schrems is an Austrian student who, like most of us, has […] Read more

I will be contributing a chapter, with the working title, “A Pluralist Account of Deference and Legitimate Expectations” to a forthcoming Hart Publishing collection edited by Matthew Groves and Greg Weeks. In the second section of my draft I focus on the sometimes confusing values that appear in the cases. As always, comments are very […] Read more

The latest issue of Policy Options has a section on judicial appointments. There are superb contributions from a high-profile slate of academics and practitioners. I also have a piece, in French. Here is the conclusion: L’observateur de l’histoire du mouvement conservateur aux États-Unis, Steven M. Teles, dirait sans doute que les conservateurs canadiens se trouvent […] Read more