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Lawful Threats: Regulatory Law and Professional Conduct
Paul Daly December 17, 2014
Lawyer Ian Richler (Gowlings) has posted a fascinating comment on a revision to Ontario’s Rules of Professional Conduct. Now, rule 3.2-5 prohibits threatening “to make a complaint to a regulatory authority” in order to “gain a benefit” for a client. An exception is set out for “an application made in good faith to a regulatory […] Read more
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Provincial Non-Enforcement of Federal Criminal Law
Paul Daly December 11, 2014
Tension about the uniform application of federal criminal law is in the news again. There is a suggestion that Ontario may refuse to enforce Canada’s new prostitution legislation, enacted recently after the previous provisions were struck down by the Supreme Court of Canada. This recalls recent and ongoing controversies in North America: state legalization of […] Read more
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2014: Clawbies and Year in Review
Paul Daly December 8, 2014
Nominations are open for this year’s Canadian Law Blog Awards. I’m going to make one repeat nomination and a couple of unconventional ones. (1) Léonid Sirota (again: his constitutional law posts on Double Aspect are outstanding); (2) Colin Lachanche (he piloted CanLII Connects, which is a superb project that aims to make expert commentary and […] Read more
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Getting it Right First Time: Administrative Decision-Makers’ Participation in Judicial Review Proceedings
Paul Daly December 4, 2014
The extent to which administrative decision-makers should be allowed to participate in judicial review challenges to their decisions is a difficult question. On the one hand, limited participation deprives a reviewing court of important perspectives that an administrative decision-maker might be able to bring to the discussion. On the other hand, aggressive participation might — […] Read more
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The Damoclean Sword of Enforcement Discretion
Paul Daly December 3, 2014
President Obama recently announced a significant policy of non-enforcement of immigration law aimed at protecting the position of illegal immigrants who are on a ‘pathway’ to citizenship. There is an excellent symposium at Jack Balkin’s blog, accessible here. Simply put, President Obama’s argument is that the legislative branch has not allocated sufficient resources to apply […] Read more
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Procedural Fairness: a View from 20,000 Feet
Paul Daly December 1, 2014
Should courts defer to administrative decision-makers on procedural matters? As things stand (for the most part), judicial intervention is warranted whenever a decision-maker fails to live up to judicially developed conceptions of fairness. But this judicial supremacy sits uneasily with the modern, context-sensitive duty of fairness. Historically, automatic intervention whenever a decision-maker deviated from the […] Read more
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Good Faith Across the Public-Private Divide
Paul Daly November 28, 2014
I spent most of today and yesterday in a colloquium on cooperative federalism, as part of the “G3” initiative that groups Université de Montréal, Université libre de Bruxelles and Université de Génève. I gave a talk on the gun registry case under reserve at the Supreme Court of Canada. One of the issues that interested […] Read more
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Doing Reasonableness Review: Workplace Health, Safety and Compensation Commission v. Allen, 2014 NLCA 42
Paul Daly November 26, 2014
There is a fascinating review of Canadian administrative law on reasonableness in Workplace Health, Safety and Compensation Commission v. Allen, 2014 NLCA 42. A received benefits for a workplace injury. These benefits were capped at 80% of actual earnings. A then retired and was to receive benefits “equal” to the pension he would have received. […] Read more
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Filling in the Blanks: EllisDon Corporation v. Ontario Sheet Metal Workers’ and Roofers’ Conference and International Brotherhood of Electrical Workers, Local 586, 2014 ONCA 801
Paul Daly November 22, 2014
Here is an interesting variant on the ‘reasonable decision but dodgy reasoning’ problem I have raised recently: what if an administrative decision-maker takes a decision that is supported by statutory authority, but fails to mention the statutory authority in question? This is the scenario in EllisDon Corporation v. Ontario Sheet Metal Workers’ and Roofers’ Conference […] Read more
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Wargaming Financial Regulation
Paul Daly November 21, 2014
Several years ago, in a review of Andrew Ross Sorkin’s excellent review of the 2008 financial crisis, Too Big To Fail, I suggested: Enough is now known about humans’ cognitive tics to start trying to tame them. What if the regulators of financial institutions were required to undergo intensive and ongoing training in behavioural economics […] Read more