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Deference Within Agencies?

Once more unto the ‘internal standard of review’ breach. Do the principles regulating judicial review by courts of administrative decision-makers apply when there is an appeal within an agency, and if so, to what extent? I tackled this question last year in the context of the Refugee Appeal Division. Now, the Federal Court has pronounced […] Read more

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Deference Across the Public-Private Divide

Public lawyers may sometimes tend to think that deference is a phenomenon unique to cases involving judicial review of government action. A moment’s reflection should be enough to dispel that notion. For example, judges in civil trials regularly defer to expert witnesses (negligence being a particular case in point) and boards of directors; and appellate […] Read more

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Regulating the Right to be Forgotten?

The European Court of Justice’s recent ‘Right to be Forgotten‘ ruling has caused much ink to be spilled. Despite the significant criticism it has received, I think the decision was quite sensible, for reasons given here by Eric Posner. It continues to provoke interesting commentary. Consider the following description of the problem from Babak Siavoshy […] Read more

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Cost-Benefit Analysis and Human Dignity

Two recent papers deal with some hard questions in the area of cost-benefit analysis. Here are two recurring problems: (a) deciding which costs and benefits to count and (b) how precisely to count some types of costs and benefits. For example, can ‘collateral’ effects of government action be excluded from consideration? Is it appropriate to […] Read more

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Administrative Law Values V: Substantive Review

I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year. This is the latest in a series of mini-posts. Download the whole essay here. Substantive Review In many jurisdictions it is now accepted that where an administrative decision-maker […] Read more

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Standards of Review: The ABCA Weighs In

A well-written student note takes me to task for my interpretation of Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 SCR 5. Catalyst has not (yet) proved to be catalytic. It has not been applied to delegated legislation or decisions taken by other elected bodies. I unhesitatingly concede that Canadian courts have treated Catalyst […] Read more