Administrative Law Matters
Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
Can Omar Khadr Apply for Habeas Corpus?
My colleague Stéphane Beaulac raises a question that has not (it seems) had any consideration: can Omar Khadr, now back in Canada, apply for habeas corpus? Khadr can apply for a conditional release next year, but perhaps he will not have to wait that long.Khadr can almost certainly apply for the Great Writ. The leading […] Read more
Duties of Fairness in the Disposal of Municipal Buildings
At first blush, the result in North End Community Health Association v. Halifax (Regional Municipality), 2012 NSSC 330 is striking. A municipality’s decision to sell an old school to a property developer was held to be unlawful because it breached a duty of fairness to local non-profit organizations and because it was sold at less […] Read more
Medical Marijuana and Fettering Discretion
One of the cardinal principles of administrative law is that a decision-maker should never fetter his or her discretion. A recent case involving a claim for reimbursement for medical marijuana illustrates the principle nicely: Heilman v The Workers’ Compensation Board, 2012 SKQB 361.A battery of pharmaceutical treatments were prescribed over the years for the applicant’s […] Read more
Sean Rehaag on the Luck of the Draw
Osgoode’s twitter feed alerted me yesterday that Sean Rehaag has an interesting empirical analysis of judicial review determinations by the Federal Court on SSRN. His dataset includes leave determinations and determinations on the merits in refugee cases.The title of his working paper is “The Luck of the Draw? Judicial Review of Refugee Determinations in the […] Read more
Towards a Right to Respond in Immigration Law?
You know when academics say, “Some of my best ideas come from students”? Sometimes, we mean it.A student I had a couple of years ago came to talk to me about procedural fairness in administrative law. “Why don’t you focus more on the right to respond? We talk about hearings, the right to counsel, and […] Read more
Precedent and Administrative Law — Again
I have previously blogged about the place of precedent in modern Canadian administrative law. The basic idea is not difficult to grasp. In Canada there is no presumption that there is a “right” answer to any question of law or discretion that arises before administrative bodies. Accordingly, administrative bodies are not bound by their previous […] Read more
The Constitution of Administrative Law
There is much interest in the United States these days in the “unwritten constitution”. Better late than never, those of us schooled in the Old World might mutter. Snark aside, one of the spin-offs is some interesting work on the place of administrative law in this unwritten constitution. Americans have long been troubled by the […] Read more
Data Destruction and Public Law: Part II
You may be baffled by the gun registry decision, even having read my earlier explanatory post. You might think along the following lines: the federal government set this registry up in the first place, using its power to enact criminal laws, by making it an offence not to register certain weapons. If that is so, […] Read more
Data Destruction and Public Law: Part I
Major kudos must go to the Québec government’s team of lawyers, who masterminded the challenge which resulted yesterday in the grant of a permanent injunction against the destruction of the long-gun registry data by the federal authorities. The challenge was not taken seriously by most public lawyers when it was first mooted. Personally, I always […] Read more
Some Justiciability Hypotheticals
Blogging has been light recently: teaching, writing and administrative commitments, allied to some technical problems, have been holding me up.One interesting recent case, which I consider a useful launching pad for a consideration of justiciability, is Guergis v. Novak, 2012 ONSC 4579. Ms. Guergis is a former minister in the federal cabinet: you can read […] Read more