Finding the Range of Reasonableness
Ronald Dworkin gave a good example to illustrate what he called “strong” and “weak” discretion. Imagine a sergeant A who is told to pick “any five men” for a mission. Contrast her with a sergeant B told to pick “the five most experienced men”. One has strong discretion, the other weak.Dworkin’s purposes were not those […] Read more
Time to Double Down on Dunsmuir?
The Supreme Court of Canada released a fascinating administrative law decision this morning: McLean v. British Columbia (Securities Commission), 2013 SCC 67. The majority reasons were written by Moldaver J.; Karakatsanis J. wrote a set of concurring reasons.The facts are straightforward. M entered into a settlement agreement with the Ontario Securities Commission in 2008, in […] Read more
Closing the Backdoor to a Right to Reasons?
I have been bothered for about a month now by a hypothetical question I received from an audience member at a talk I gave at the end of October. I was explaining some cases which hold either (a) that plainly inadequate reasons make a decision unreasonable or (b) the absence of sufficient reasons makes a […] Read more
Gaming Regulatory Processes
There is an interesting new paper by Yehonatan Givati called “Game Theory and the Structure of Administrative Law“, interesting principally because of its focus on advance ruling and licensing rather than the well-known distinction between adjudication and rulemaking. Here is the abstract: How should administrative agencies choose among the different policymaking instruments at their disposal? […] Read more
Putting the Katz amongst the Pigeons
In Zenner v. Prince Edward Island College of Optometrists,  3 SCR 645, one of the conditions imposed by his professional body on an optometrist who had lost his licence was that he complete an accredited medical ethics or optometrist course. The problem was that, at the time, the College had not accredited any such […] Read more
Drugs and Administrative Law: Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64
The Supreme Court of Canada had not addressed a challenge to the vires of delegated legislation since reformulating the framework for judicial review of administrative action in Dunsmuir until today’s decision in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64. A good summary is available here.The Court took a classical […] Read more
Chevron Deference in Canada?
The comments of Evans J.A. in Qin v. Canada (Citizenship and Immigration), 2013 FCA 263 are obiter, strictly speaking, but they are comments by Evans J.A. and will carry a great deal of weight.There are two important aspects to Evans J.A.’s formulation of the rules for judicial review of administrative interpretations of law. First, where […] Read more
The Lori Douglas Inquiry
The Lori Douglas affair took a spectacular new turn yesterday, when the entire Inquiry Committee resigned. The Committee, established under the Judges Act, was inquiring into allegations against a Manitoba judge. The Committee published reasons for its decision. Notably, the Committee felt its function was being frustrated by the resort of various parties to the […] Read more
Light blogging, heavy writing
I have been quiet for the last couple of weeks, mainly because I have been working on two fairly extensive projects (along with the usual term-time workload) with short deadlines. One of these is a set of written submissions to the Senate Standing Committee on Legal and Constitutional Affairs, at which I am giving evidence […] Read more
Canada’s Senate: Advisory Elections and the Fettering of Discretion
The Supreme Court of Canada is hearing argument this week on a set of questions relating to the reform (or abolition) of the Senate. Part V of the Constitution Act, 1982 sets out various procedures for constitutional amendment. The Court has to determine which matters fall under which procedures. The Senate Reference involves classical questions […] Read more