Despite occasional suggestions to the contrary, remedial discretion is a key feature of contemporary administrative law. In Vavilov, the majority discussed the issue at surprising length — surprising because although remedial discretion is by now a well-developed phenomenon, it is rarely the subject of detailed discussion.  The majority set out a variety of factors which […] Read more

The Vavilov framework is intended to be a clear break with the past: “A court seeking to determine what standard is appropriate in a case before it should look to these reasons first in order to determine how this general framework applies to that case” (at para. 143). Given the reformulations effected in Vavilov, some […] Read more

In early 2015 I was scheduled to present a paper called “2020 Vision: Dunsmuir 2.0” to a judicial training seminar. I never made it to the seminar and the paper was never published: I submitted it to a leading Canadian journal but when it came back with a “revise and resubmit” I ultimately dropped it […] Read more

In their hard-hitting concurring reasons in Vavilov, Abella and Karakatsanis JJ charge the majority with “reviv[ing] the kind of search for errors that dominated the pre-C.U.P.E. era” (at para. 199). Although there are some differences of detail, and some internal tensions in the majority’s articulation of a new methodology for reasonableness review, on balance the […] Read more

As I mentioned in my previous post, the Supreme Court of Canada addressed two long-standing issues in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. In this post, I will focus on the Court’s “revised framework for selecting” the standard of review (adopted by a majority of 7-2) (at para. 10). In […] Read more

When Benjamin Franklin was asked what sort of government the framers of the U.S. Constitution had created, he quipped: “A Republic, if you can keep it”. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada reached something of a consensus. The question is: can the Court maintain […] Read more

Why is the Vavilov/Bell Canada/National Football League trilogy so important? In granting leave to appeal in the Bell Canada and Vavilov appeals, the Supreme Court of Canada expressed itself: …of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. […] Read more

Bushfires and volcanoes are raging in the Antipodes, the U.S. President is on the verge of impeachment, protesters in Hong Kong, India and Iran have taken to the streets, working-class retirees last week flocked to the polls in northern England to vote for MPs led by an Old Etonian. And now, standard of review has […] Read more

On Thursday, the Supreme Court of Canada will deliver its decisions in the long-awaited trilogy of cases heard last December: Vavilov v. Canada (Citizenship and Immigration) (Federal Court, 2015 FC 960; Federal Court of Appeal, 2017 FCA 132); Bell Canada v Canada (Attorney General) (Federal Court of Appeal, 2017 FCA 249); and National Football League […] Read more

The reading lists for the Administrative Law & Governance Colloquium 2020 have been finalized. You can find more information on the Colloquium here (which also has the course code CML 3351 for uOttawa students). The seminars are open to all and the reading lists are designed to help you, before or after the seminar, to […] Read more