We all know the famous observations of legal historians about the influence of procedure on the development of the the common law. Maine’s remark about substantive law being “gradually secreted in the interstices of procedure” and Maitland’s quip about the buried forms of action that “still rule us from their graves” remind us that procedural […] Read more

I will be contributing a chapter, with the working title, “A Pluralist Account of Deference and Legitimate Expectations” to a forthcoming Hart Publishing collection edited by Matthew Groves and Greg Weeks. Here is the first section of my draft. As always, comments are very welcome. Download the whole paper here. Introduction Legitimate expectation, Lord Fraser […] Read more

Last week’s important Supreme Court of Canada decision on tribunal standing prompts some more general thoughts on my part. There was no oral argument on the standing issue during the hearing, which is striking given the extensive discussion in Rothstein J.’s majority reasons. Standing was argued in the written submissions, but it did not feature […] Read more

From the sporting world, an excellent illustration of the administrative law doctrine of relative nullity. Last week, in a match against Chelsea, Arsenal defender Gabriel Paulista was sent off for kicking out at Chelsea striker Diego Costa. Though I may be showing my colours here, it was a preposterous decision: Gabriel’s actions were innocuous compared […] Read more

The Supreme Court of Canada released a very important decision on tribunal standing today: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, a utilities regulation case concerning the Board’s decision to disallow salary costs even though a substantial portion was fixed in place by a binding collective agreement. The Court upheld the […] Read more

(This is the sixth and last in a series of posts, a day early this time because I hope to comment tomorrow on two very important administrative law decisions from the Supreme Court of Canada. You can also read the first, second, third, fourth and fifth installments. Download my draft paper in its entirety here.) […] Read more

Apologies for the title. Mentioning issue estoppel would have caused my page views to crash through the floor, which would have been a pity because there is a recent case that raises an interesting technical point about issue estoppel and standard of review. In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 the […] Read more

There is a busy Fall ahead for your erstwhile blogger! First, a plug for a new professional development/networking programme we are starting at U de M: les Rendez-vous juridiques. The first is a pre-election special on October 5, featuring Yolande James and my colleagues Jean Leclair, Noura Karazivan and Hugo Tremblay on a variety of […] Read more

My article on administrative appeals, Les appels administratifs au Canada is now published in the Canadian Bar Review. Subscribers can access it here. There is an open-access version on SSRN. The article has already provoked interest (see Hachey Livestock Transport Ltd. v. Canada (Minister of Agriculture and Agri-Food), 2015 CART 19, at para. 37 ff) […] Read more

(This is the fifth in a series of posts. Read the first, second, third and fourth. The draft can be downloaded in its entirety here.) One very useful way to conceptualize the administrative state is to perceive it as a spectrum, along which, as Justice LeBel put it in Imperial Oil, the requirements of the […] Read more