A challenge for lawyers is to fit new concepts to old language. Law is in a constant state of flux, adapting always to new realities. Sometimes, however, doctrines change rapidly and without courts considering the knock-on effects on other doctrines. The problem of tribunal reconsiderations of their decisions is an example. Say tribunals may reopen […] Read more

Felix Frankfurter once described jurisdiction as “a verbal coat of too many colours”. Exhibit #4579009 is Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499, which features three sets of reasons on tribunals’ authority to reopen closed decisions (though the concurring reasons of Goepel J.A. contain mostly a brief treatment of the merits […] Read more

I have been known to complain about courts and administrators supplementing the administrative record after a decision has been made. In a case last year, a Canadian appellate court deferred to an interpretation of law offered in an affidavit. I was reminded at the Public Law Conference that the use of affidavits to bolster the […] Read more

Should courts defer to administrative decision-makers’ interpretations of the limits of their own statutory authority? The Supreme Court of the United States finally answered that question in the affirmative today, in City of Arlington v. Federal Communications Commission. I think the majority is absolutely right, as I explain below. Indeed, Scalia J.’s majority opinion is […] Read more

In the context of an ongoing investigation of the embattled engineering firm, SNC-Lavalin, Québec’s securities regulator compelled an executive to produce certain documents. In the same letter, however, the regulator purported to prevent the executive from telling anyone else about the documents (apart from the company’s lawyers). Revealing the existence of an ongoing investigation was […] Read more

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

One of the cardinal principles of administrative law is that a decision-maker should never fetter his or her discretion. A recent case involving a claim for reimbursement for medical marijuana illustrates the principle nicely: Heilman v The Workers’ Compensation Board, 2012 SKQB 361.A battery of pharmaceutical treatments were prescribed over the years for the applicant’s […] Read more

Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, involves a masseur, (alleged) extra-marital sex, (alleged) intimidation of a witness and (allegedly) a vengeful government agency. A story interesting enough, then, to survive even the following injection of administrative law principles.A former patient of the applicant’s made a complaint against him, on the […] Read more

Karole Cuddihy passes along an interesting Irish High Court decision. In the following passage, from EMI Records (Ireland) Ltd. v. The Data Protection Commissioner, [2012] IEHC 264, the ever-reliable Charleton J. describes the place of deference in Irish law. I think it also functions as a serviceable description of prevailing English law: 5.0 Only in […] Read more

Administrative agencies are generally entitled to develop policies. Doing so assists agencies in discharging their statutory mandates in a coherent and consistent manner. Those who come into contact with agencies also benefit: it ought to be easier to predict the application of a general rule than the exercise of discretion. From the Court of Appeal […] Read more