procedural fairness | Page 6
Process and Substance: What Happens when the Decision-Maker Doesn’t Listen?
Another example from the Canadian courts of the thin line separating process from substance: Turner v. Canada (Attorney General), 2012 FCA 159. On this occasion, the determination that a question went to process is again plausible at first sight but troubling on closer inspection. The applicant here alleged that he was discriminated against by the […] Read more
Administrative Policies Must be Reasonable
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
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
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
One of the reasons offered by the concurring judges in Multani for merging administrative review and constitutional review (at least when an individualized decision was challenged) was that keeping them separate and distinct would be confusing to lower courts and litigants. That view never seemed particularly compelling to me: lawyers and judges often make and […] Read more
A Slightly Less Cold House for Foreign Investors
One of the components of the Federal Government’s omnibus budget bill, the Jobs, Growth and Long-term Prosperity Act, involves amendments to the Investment Canada Act. In certain circumstances, take-overs by foreign persons of Canadian corporations must be reviewed by the Minister for Industry and, if the Minister concludes that the proposed investment is not of […] Read more
Why Give Reasons for Decisions?
From the Nova Scotia Court of Appeal comes a useful overview of the requirement to give reasons:  In a series of cases, the Supreme Court of Canada has recognized the importance of reasons in various settings: e.g., Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 S.C.R. […] Read more