I am preparing a piece for a collection, edited by Matthew Harrington, celebrating the 150th anniversary of the Canadian constitution. My topic is rights in administrative law. My goal is quite simple: to identify pre- and post-Charter modes of rights protection and assess their advantages and disadvantages. The pre-Charter era is exemplified by Smith & […] Read more

Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 was thought to represent an opportunity for the Supreme Court of Canada to revisit (again!) its standard of review framework. The underlying question was whether an Assessment Review Board could increase the value of a property assessment where a taxpayer had applied for […] Read more

Over the summer, the Yale Journal on Regulation’s excellent Notice and Comment blog ran a series on Seminole Rock deference. The entire series has now been collected in a PDF that can be downloaded from SSRN. From Aaron Nielson’s introduction: First, what is Seminole Rock deference? According to the Supreme Court, “Auer deference is Chevron […] Read more

From the Irish Supreme Court, a delightful case entitled Barlow v Minister for Agriculture, Food and the Marine [2016] IESC 62. Fishing for mussels was the main issue. Article 10.1 of the Irish Constitution provides that all “natural resources” within Irish jurisdiction “belong to the State” and Article 10.3 allows for “Provision [to] be made by law […] Read more

Here are some very brief thoughts on the Divisional Court’s remarkable decision in the Brexit litigation this morning. In R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768, an extremely strong bench (Lord Thomas LCJ, Lord Etherton MR and Sales LJ) held unanimously that the Article 50 notification which will […] Read more

On Thursday, November 3, I will appear via videolink before the Senate of Canada’s Standing Committee on Banking, Trade and Commerce, part of the regular five-year review of the Copyright Act (see s. 92: “Five years after the day on which this section comes into force and at the end of each subsequent period of five years, […] Read more

The first strand of the Brexit litigation has now produced a reasoned judgment, the Northern Irish High Court (Maguire J.) handing the government a resounding win: Re McCord [2016] NIQB 85. The issues raised here were mostly distinct Northern Irish issues, but it should be noted that if the English courts were to follow Maguire J.’s approach, the […] Read more

Blogging remains slow, primarily because I have been without a computer for almost two months (!), and in the circumstances I am very happy when a blog entry that more or less writes itself comes along. The Canadian Federal Court of Appeal’s recent decision, per Stratas J.A., in Canada (Attorney General) v. Bri-Chem Supply Ltd., 2016 FCA 257 […] Read more

It is now taken as a given in most legal and political circles that the vaunted “Great Repeal Bill” will contain a great Henry VIII clause. The purpose of this post is to speculate on how the clause might be crafted to to overcome the many constitutional problems created by Brexit and to assist Britain […] Read more

There is nothing especially new about R (Public Law Project) v. Lord Chancellor [2016] UKSC 39, but it does contain a useful review of the basics of judicial review of secondary legislation. The Lord Chancellor had sought to introduce by way of secondary legislation a residence test for eligibility for legal aid. Entitlement to legal aid is determined […] Read more