I have posted before about the standard of review where an administrative decision-maker reviews another decision-maker: see especially here and also here and here. There are two important matters, in my view. First, the appellate administrative decision-maker is not limited to a choice between a full de novo hearing and a judicial-review type proceeding: there […] Read more

Suppose there is an administrative decision-maker. Suppose the legislature, in its wisdom, provides for an internal means of appeal. What standard of review should the appellate decision-maker apply to the first-instance decision-maker? And how should a court judge the choice of standard on judicial review? Proceeding from first principles, I would say the answer is […] Read more

After a hiatus of nearly four years, the Supreme Court of Canada yesterday applied the reasonableness standard for the first time since Vavilov and the companion case of Canada Post. The decision in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 (Jamal J for the majority; Côté J concurring) is significant as far as […] Read more

No sooner had I started to play around with Chat GPT-4 to write administrative decisions than the Federal Court issued a decision on the use of AI in the administrative decision-making process. In Haghshenas v. Canada (Citizenship and Immigration), 2023 FC 464, Brown J considered whether using an AI system (Chinook) in writing a decision […] Read more

This is an excerpt from my forthcoming article, “The Appellate Standard of Review in Public Law Cases“. Download it here from SSRN. I blogged in 2018 on the English (AR) and Australian decisions (SZVFW) mentioned below. In the previous section, I described the broader context surrounding the decisions in AR and SZVFW. I suggested that […] Read more

This is an excerpt from my forthcoming article, “The Appellate Standard of Review in Public Law Cases“. Download it here from SSRN. The Canadian approach to appellate review in public law cases resembles the approach robustly defended by the High Court of Australia in SZVFW.[1] An appellate court must step into the shoes of the […] Read more

Today, Canada’s Parliament was prorogued by the Governor General until September 23 on the advice of the Prime Minister. In this post I will consider whether there might be plausible grounds for challenging this prorogation in the courts. My goal is not to incite any such challenge but rather to demonstrate the potentially far-reaching implications […] Read more

This week, I am going to post three pieces on matters left unresolved by the Supreme Court of Canada in its seminal administrative law decision, Canada (Citizenship and Immigration) v. Vavilov, 2019 SCC 65. First, internal appeals, second, administrative decisions allegedly infringing Charter rights and, third, procedural fairness. There are three observations to make about […] Read more

In their hard-hitting concurring reasons in Vavilov, Abella and Karakatsanis JJ charge the majority with “reviv[ing] the kind of search for errors that dominated the pre-C.U.P.E. era” (at para. 199). Although there are some differences of detail, and some internal tensions in the majority’s articulation of a new methodology for reasonableness review, on balance the […] Read more