Consider paragraph 6 of Friday’s Supreme Court of Canada decision in the Nadon reference: [6]                              The practical effect is that the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio.He remains a supernumerary judge of the Federal Court […] Read more

As you probably know by now, the Supreme Court of Canada ruled on Friday that federal court judges are not eligible for appointment to its three ‘Quebec seats’: Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. Although retrospective legislation was introduced after the appointment of Justice Marc Nadon to the Court, […] Read more

There are two interesting aspects to Université McGill c. Ong, 2014 QCCA 458, a technical aspect about administrative-law doctrine and a substantive aspect about access to administrative justice. O was an employee of McGill University until she was dismissed for mishandling cash and impeding an investigation into missing funds. She vigorously contested the dismissal before […] Read more

The Irish Supreme Court recently released its judgment in Murphy v. Ireland, 2014 IESC 19. Of greatest general interest is the recognition that the applicant had a limited right of procedural fairness which imposed a duty on the Director of Public Prosecutions to give reasons to send him for a non-jury trial at the Special […] Read more

On Friday, the Supreme Court of Canada will hand down its decision in the “Nadon reference”. For further background — and my take on the key issues — you can download my submissions to the Senate Committee on Legal and Constitutional Affairs. Two posts by Michael Plaxton — here and here — also provide a […] Read more

I have posted Unreasonable Interpretations of Law to SSRN. Here is the abstract: Reasonableness has become the dominant standard of review of administrative action in Canada. Understanding what makes a decision unreasonable has become a critical issue for Canadian judges and jurists. The question I will address in this essay is: what does it mean […] Read more

The UK Supreme Court decided an important case on the law of nuisance last week: Coventry v. Lawrence, [2014] UKSC 13. One of the many important issues was whether planning permission is a defence to an action in nuisance.In his leading judgment, Lord Neuberger held that it is not: The grant of planning permission for […] Read more

David Feldman has posted “Error of Law and the Effects of Flawed Administrative Decisions and Rules” on SSRN. Here is the abstract: Over the last half-century, English administrative law and theory have increasingly paid lip-service to three propositions. (1) All errors in the course of making a decision or rule are to be regarded as […] Read more

In Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, Stratas J.A. added his voice to the chorus of judges urging deference on questions of procedural fairness. A choir composed of Bich J.A., Evans J.A. and Stratas J.A. cannot be drowned out by assertions of the orthodoxy that ‘correctness is the standard of […] Read more

Late last year, the Supreme Court of Canada derided “fashionable” claims by applicants for judicial review that a correctness standard should apply in the review of administrative decisions. Yet such claims continue to be made successfully before lower courts. Sometimes they are plausible (see here), sometimes they are not (see here, at para. 59). Clear […] Read more