Administrative Law Matters
Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
2023 Administrative Law & Governance Colloquium: “The Legitimacy of the State”
The topic for the 2023 edition of the Administrative Law & Governance Colloquium was “The Legitimacy of the State”: The legitimacy of contemporary liberal democratic states is in a state of flux. Managing the effects of globalization, responding to the COVID-19 pandemic and fighting escalating inflation have prompted serious questions about public administration in the […] Read more
Rights of Appeal: Contracting or Expanding Judicial Review?
All of a sudden there is intense interest in Canada in the consequences of rights of appeal for the availability of judicial review. The basic issue, to be considered next month by the Supreme Court of Canada in Yatar (and at umpteen roundtables and seminars until that case is decided), is whether legislation creating a […] Read more
OBA Annual Update on Administrative Law
As we have done almost every year since 2013, Justice Stratas and I will be doing a joint online event next week for the Ontario Bar Association casting a look over the current state of affairs in Canadian administrative law: Our most popular Administrative Law Section event is back again this year to bring you […] Read more
Reconciling Administrative Law with Indigenous Sovereignty? Bastien v. Jackson, 2022 FC 591
To mark the National Day of Truth and Reconciliation, I thought I might highlight Grammond J’s fascinating decision in Bastien v. Jackson, 2022 FC 591, which prompts questions about the relationship between the principles of administrative law and the sovereignty of Indigenous peoples. B and J were councillors of the Piikani Nation. B brought a […] Read more
Context, Reasonableness Review and Statutory Interpretation: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21
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
More on the Notwithstanding Clause and Administrative Law
In a previous post, I addressed the relationship between the notwithstanding clause and administrative law. Here I address a number of other relevant issues: the role of Charter values; the principles of judicial review of administrative action; and the relationship between legislation passed notwithstanding Charter rights and existing statutory schemes. Charter Values So much for […] Read more
Notwithstanding Administrative Law?
The ‘notwithstanding’ clause of the Constitution of Canada (contained in s. 33 of the Constitution Act, 1982) provides as follows: 33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a […] Read more
Maybe it Does Matter, After All
I recently highlighted Professor Andrew Green’s paper on the effect — or not! — of Supreme Court of Canada decisions in administrative law. I am happier to report that a new paper published in Canadian Public Administration by David Said comes to the conclusion that the Court’s decisions can be significant: “Navigating entangled terrain: The […] Read more
Administrative Tribunals in Canada: Constitutional Subordinates or Equal Partners?
I have posted a new paper to SSRN, “Administrative Tribunals in Canada: Constitutional Subordinates or Equal Partners“, a chapter in a forthcoming edited collection on Administrative Tribunals in the Common Law World. Here is the abstract: In this Chapter, I explore the tension between two propositions in Canadian public law. On the one hand, administrative […] Read more
Refreshing the Places Other Frameworks Cannot Reach
Heineken once ran an advertising campaign claiming it was the beer that refreshed the parts other beers cannot. As Ian MacKenzie notes in a kind review of A Culture of Justification: Vavilov and the Future of Administrative Law, I think that the framework for judicial review of administrative action set out in Canada (Minister of […] Read more
Clarity on the Challenges for Systemic Challenges: Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17
The Supreme Court of Canada’s decision in Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17 sets out some important principles about challenges to government action at the intersection of constitutional and administrative law. On balance, I think the decision limits the potential for systemic challenges to complex statutory and regulatory regimes […] Read more