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Against Balancing and Weighing: Strickland v. Canada (Attorney General), 2015 SCC 37
For some time, I have wanted to write about the prevalent tendency to describe the judicial method in public law cases as one of ‘weighing’ or ‘balancing’ competing interests. It seems to me that reference to weight and balance captures only a part of the judicial task in complex cases. In fact, there is a […] Read more
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Must the Show Go On? Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139
In several recent decisions, the Federal Court of Appeal has set out a general framework for conducting judicial reviews of administrative action. Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 is an example. Stratas J.A. noted that there are “three distinct analytical steps” in any judicial review: (1) Preliminary objections. […] Read more
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It’s a Dog’s Life: Isbester v. Knox City Council, [2015] HCA 20
Isbester v. Knox City Council, [2015] HCA 20 is an interesting example of the operation of the rule against bias to administrative proceedings. At the centre of the tale is a dog, Izzy, who had attacked and injured a person. Legislation in the Australian province of Victoria gives the Council the power to order that […] Read more
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The King is Dead, Long Live the King: Hinse v. Canada (Attorney General), 2015 SCC 35
Hinse v. Canada (Attorney General), 2015 SCC 35 features some familiar fixtures, one drawn from daytime television — the innocent man wrongly imprisoned for a crime he did not commit — and one drawn from the common law — the officer(s) of the Crown exercising prerogative powers. Here, the Supreme Court of Canada’s sympathy for […] Read more
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The Elephant in the Mousehole: King v. Burwell, 576 U.S. ______ (2015)
So much has already been written about the Supreme Court of the United States’ decision in King v. Burwell, 576 U.S. ______ (2015) that tax credits are available on healthcare exchanges established by the federal government to implement the Affordable Care Act that I hardly feel the need to weigh in at all: SCOTUS blog […] Read more
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An Age of Facts? R. v. Smith, 2015 SCC 34
A new edition of Grant Gilmore’s classic Storrs Lectures, The Ages of American Law, was published recently with a new postscript by Philip Bobbitt. Gilmore left American law in the “Age of Anxiety”, an era in which I fear Americans remain, although Bobbitt makes a powerful case for the emergence of an “Age of Consent”. […] Read more
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Guidelines are Good for You: Nzolameso v. City of Westminster, [2015] UKSC 22
Nzolameso v. City of Westminster, [2015] UKSC 22 is a case about a technical area of law — local housing authorities’ duties to house homeless persons — but which contains interesting passages on reasoned decisions and administrative guidelines. N was evicted from a private property in Westminster and applied for local authority housing. The authority […] Read more
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The Return of Context in the Standard of Review Analysis?
Long-time readers of this blog know I never really thought context had been eradicated by the simplification project which the Supreme Court of Canada began in Dunsmuir: see, e.g. my 2012 articles here and here. Standard of review issues continue to cause disquiet on lower courts around the country. Once a case does not fall […] Read more
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On the Blurry Line Between Substance and Procedure? Syndicat des employées et employés professionnels et de bureau, section locale 574, SEPB, CTC-FTQ c. Groupe Pages jaunes Cie, 2015 QCCA 918
When an administrative decision-maker hears argument but decides a point on another ground, what is the appropriate posture of a reviewing court? Is this a matter of procedural fairness, because it goes to the ability of the parties to make full and complete submissions, or is it a matter of substantive reasonableness, because it goes […] Read more
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Deference and the Principles of Statutory Interpretation (Again): Bell Canada v. Amtelecom Limited Partnership, 2015 FCA 126
Andy Grewal had an interesting post on the Notice and Comment blog last week on a D.C. Circuit decision holding that the canon against extraterritorial interpretation of statutes trumps Chevron deference (though also suggesting that if the agency turned its mind to the canon its reasoned position might survive review). Grewal comments, astutely: Yet recent […] Read more