2023
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“Gendered Misconduct in Academia”: Journal of European Competition Law & Policy Editorial
Paul Daly December 13, 2023
There is a remarkable editorial in the latest issue of the Journal of European Competition Law & Policy by a group of female scholars. Here is an extract: Small informal meetings with fellow academics painted a gloomy picture. People shared their experiences: from gender-based discrimination to outright sexist, racist or otherwise bigoted comments, to persistent […] Read more
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The Doctrinal Roots of Charter Values
Paul Daly December 11, 2023
In one of the most interesting scholarly works of the past decade, Professor Peter Cane offered, in Controlling Administrative Power: An Historical Comparison (CUP, 2016), an institutional explanation for divergence between jurisdictions. He identified the “similarities and differences” in the “systems of government” (at 2) as an explanatory device and went on over the course […] Read more
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Die Another Day: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31
Paul Daly December 8, 2023
Reports of the demise of the framework set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 have been greatly exaggerated. Today, in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, the Supreme Court of Canada resoundingly restated Doré, now superpowered […] Read more
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The Section 35 Order was Lawful After All: Re Scottish Ministers’ Petition 2023 CSOH 89
Paul Daly December 8, 2023
Earlier this year I mused about whether the UK government’s first use of the veto power in s. 35 of the Scotland Act 1998 was lawful. Today, the Outer House of the Court of Session (the first-instance judicial review court in Scotland) decided that it was: Re Scottish Minister’s Petition 2023 CSOH 89. The lynchpin […] Read more
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When Can “Policy” Be Taken into Account?
Paul Daly December 5, 2023
In my last post in this series (see also here and here), I consider when “policy” can be taken into account by administrative decision-makers. In what circumstances can the “policy” memorialized in the instruments described in the previous post be taken into account by administrative decision-makers? The answer to this question is two-fold: it depends, […] Read more
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Sources of “Policy” in Administrative Law
Paul Daly December 4, 2023
My last post on “policy” was somewhat despairing. I will try to be more bullish in this one! To tentatively attempt a positive definition, I would say a “policy” is a posture adopted by a body on an issue which, in turn, shapes the position the body takes on other issues. This tentative definition avoids […] Read more
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Administrative Law Values, Constitutional Principles and Mandatory Orders: R (Imam) v London Borough of Croydon [2023] UKSC 45
Paul Daly November 30, 2023
When a court finds in judicial review proceedings that a decision was unlawful, it must then turn its mind to the question of remedy. Of all the available remedies in the judicial armoury, the mandatory order is the most far-reaching and intrusive. Particular care is required before deploying it, as Lord Sales’s analysis in R […] Read more
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“Policy” in Administrative Law
Paul Daly November 27, 2023
“Policy” is one of the most poorly defined terms in the social sciences, as Professor Cairney has observed (The Politics of Evidence-Based Policy Making (2016), at p. 4). In law, the situation is little better. My focus here is on public administration, so I will confine my observations to the law of public administration — […] Read more
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Against ATCO: Text, Purpose & Context, not “Implied” and “Express” Powers
Paul Daly November 24, 2023
I have a new paper coming out next year in the Advocates’ Quarterly, entitled “Against ATCO: Text, Purpose & Context, not “Implied” and “Express” Powers“: It is often said that administrative bodies have no inherent jurisdiction, only those powers granted by the legislature. Questions about the scope of regulatory authority arise frequently and are often […] Read more
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Extra-territorial Regulation: Sharp v. Autorité des marchés financiers, 2023 SCC 29
Paul Daly November 18, 2023
A fairly frequent problem in Canadian law is the application of regulatory statutes to individuals or businesses resident or established in another province. Think of a BC brokerage advising (badly) on mortgage transactions in Quebec, an Albertan providing inside information to a Manitoban in respect of stocks traded in Ontario or an online portal based in […] Read more