On rare occasions, an administrative decision-maker will conduct a hearing in such a way as to give rise to a reasonable apprehension of bias, that is that the decision-maker had prejudged the outcome before the conclusion of the hearing. Environmental Appeal Board v. District Director, Metro Vancouver, 2025 BCCA 303. The Court of Appeal (Edelmann […] Read more
Readers will forgive a slightly more personal post. This morning, I learned of the sudden death of Professor Conor Gearty KC. Amongst a very great many other things, Conor was my first cousin, once removed. We first met — after many family mentions of this brilliant but slightly mysterious figure who blazed a trail in […] Read more
Last year, in Auer the Supreme Court of Canada applied the reasonableness standard to judicial review of regulations, settling a vibrant academic debate and appellate split in favour of the Vavilov framework. Two important recent appellate decisions underscore that Vavilov is the general framework for judicial review of administrative action: Universal Ostrich Farms Inc. v. Canada (Food Inspection […] Read more
Readers will know that one of the unresolved questions still lingering post-Vavilov is the standard of review applicable to appeals of arbitration awards (see Part III here and also here). This is a subtly difficult question. Prior to Vavilov, the Supreme Court of Canada had held that the judicial review framework applies to arbitration appeals: Sattva Capital […] Read more
The website and call for papers for the 2026 Public Law Conference, in Cape Town, is now online. The theme is the future of constitutional democracy and there is a non-exhaustive list of illustrative topics: The future of constitutional democracy and the rule of law / the separation of powers The legislature, electoral systems, democratic […] Read more
Even though guidelines (and other species of ‘soft’ law) are not binding, they can influence the meaning given to legislation. A series of four Supreme Court of Canada decisions make the point: in interpreting a statutory provision, it is necessary to have regard to text, purpose and context; relevant guidelines are part of the interpretive […] Read more
In most Canadian jurisdictions, an unsuccessful party can appeal a judicial review decision as of right. In a previous post (see here), I discussed whether the appellant bears, or should bear, a ‘tactical burden’ to convince the appellate court that the first-instance judge got something wrong. However, in two Canadian jurisdictions, the ability to seek […] Read more
Some of you may know that along with Sujit Choudhry I am representing Democracy Watch in its appeal to the Supreme Court of Canada of the decision in Democracy Watch v. Canada (Attorney General), 2024 FCA 158. As is my practice, I do not intend to comment on the case between now and the Supreme […] Read more
I had the unique pleasure of being counsel to the applicant in a judicial review application that was allowed from the Bench: Ontario Association of Chicken Processors v. Ontario Broiler Hatching Egg & Chicken Commission, 2025 ONSC 4174. This was an application in respect of a decision made after a de novo hearing before Ontario’s Agriculture, Food […] Read more
A question that has garnered relatively little attention in recent years is whether the bias of one member of an adjudicative body taints the entirety of the decision. The Supreme Court of Canada’s authorities point in two directions. On the one hand, in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] […] Read more