Say you were a legislator who wished to dress up a criminal offence as a regulatory penalty, perhaps because you wanted to avoid triggering the constitutional protections that attach to criminal proceedings. You would presumably impose an extraordinarily large fine, include language that has connotations of guilt and set out an informal process. Now, say […] Read more

That is one possible reaction to Timothy Endicott, “Comity Among Authorities”: An authority often needs to take account of the decisions of another authority, in order to carry out its own responsibilities. This essay outlines general principles of the approach that authorities ought to take toward the decisions of others. The most important is the […] Read more

South of the border, more and more voices are joining the chorus of concern about the administrative state. It is difficult to trace cause and effect — administrative and executive power have long been a topic of concern on the left and right of American politics — though I suspect that President Obama’s use of […] Read more

I think it is safe to say that today’s conventional wisdom is that central bank independence from politics should be sacrosanct. Canada’s Finance Minister, Joe Oliver, is in lukewarm water after saying publicly last week: “Quantitative easing is not on the table”. Critics suggest that this represents an inappropriate interference with the independence of the […] Read more

In my view, the Supreme Court of Canada’s commitment to deference is in tension with its institutional role as the country’s highest court. According deference to administrative decision-makers means favoring legal pluralism, permitting those decision-makers to put their own spin on rules of substantive and procedural law. But a court of final resort may feel […] Read more

In Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, the Ontario Court of Appeal tackled the role Charter values may play in the administrative process. At the centre of the case were two employees who worked in a prison. Taylor-Baptiste was the manager of Dvorak, who was also a union president. During a […] Read more

The latest contributor to the growing literature on deference and procedural fairness is Adrian Vermeule in “Deference and Due Process“: In the textbooks, procedural due process is a strictly judicial enterprise; although substantive entitlements are created by legislative and executive action, it is for courts to decide independently what process the Constitution requires. The notion […] Read more

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

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

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