Administrative Law Matters
Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
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Soft Law and Religious Freedom: Ishaq v. Minister of Citizenship and Immigration, 2015 FC 156
Paul Daly February 22, 2015 Administrative law / Public law theory
Ishaq v. Minister of CItizenship and Immigration, 2015 FC 156 has received enormous media attention. The case touches on whether the government can require an applicant for Canadian citizenship to take off her niqab before she takes the oath of allegiance. Moreover, having lost at first instance, the federal government was very loud in announcing […] Read more
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Justiciability of Senate Non-Appointments
Paul Daly February 17, 2015
Can a court require the Prime Minister to appoint senators? Having been embarrassed (apparently through no fault of his own) by scandals involving his past picks, Mr. Harper is in no hurry to name any new senators to replace retirees. And the leader of the opposition, Mr. Mulcair, has vowed not to appoint any senators […] Read more
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Deadlocked Decision-makers: Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17
Paul Daly February 13, 2015
“A question of general law which will require the application of a correctness standard, aside from the constitutional questions and others mentioned in Dunsmuir, are becoming increasingly few and far between, if any still exist” — Loewen v. Manitoba Teachers’ Society, 2015 MBCA 13, at para. 54. And yet, and yet, and yet…in Wilson v. […] Read more
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Human Rights Tribunals and Reviewing Courts in Canada
Paul Daly February 11, 2015 Administrative law
Canada’s Human Rights Tribunals have extensive powers to investigate and redress alleged breaches of fundamental rights by public and private parties. These statutory rights overlap but do not mirror the rights protected constitutionally; the human rights codes they are found in are usually described as “quasi-constitutional”. But Canadian courts have typically been cautious in allowing […] Read more
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Reviewing Regulations: Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25
Paul Daly February 5, 2015
Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25 is the first in what is likely to be a long line of cases on TWU’s battle to get a law school up, running and accredited nationwide (see my earlier post here). Campbell J. found for TWU: the Society’s decision to refuse accreditation was […] Read more
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Procedural Fairness in Canada: Continuing Debate over the Standard of Review
Paul Daly February 2, 2015
I am happy to admit that, although I believe it is time for Canadian courts to follow the suit of several appellate judges and adopt a deferential approach to questions of procedural fairness, the question is not yet settled. Recently, though without mentioning the contrary jurisprudence in his own court, Nadon J.A. assumed a correctness […] Read more
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A Dunsmuir Anecdote
Paul Daly January 28, 2015
I can’t resist passing on the postscript to Norman Siebrasse’s excellent post on standard of review issues raised in a recent (and interesting) patent case at the Federal Court: Finally, on a personal note, Dunsmuir was the clerk of the court in Fredericton, New Brunswick (the full name of the case is Dunsmuir v New […] Read more
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A Functional View of Reasons: T-Mobile South, LLC v. City of Roswell, 574 U.S. ___ (2015)
Paul Daly January 27, 2015
Here is an interesting Supreme Court of the United States opinion on a statutory requirement to give reasons: T-Mobile South, LLC v. City of Roswell, 574 U.S. ___ (2015). T-Mobile wanted to build a cell-phone tower in Roswell. The City refused to give permission: the elected members of the Council adopted a motion to deny […] Read more
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Categories versus Rebuttable Presumptions: Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3
Paul Daly January 24, 2015
Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 is a long, complex and important decision on competition law. It also contains a spirited disagreement between Rothstein and Abella JJ. on the appropriate standard of review of determinations of law made by the Competition Tribunal. Oddly enough, I think both of them are right: […] Read more
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Justiciability of the Prerogative: Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4
Paul Daly January 21, 2015 Administrative law
The Federal Court of Appeal decision in Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4 on justiciability of international treaties, the prerogative in respect of foreign affairs, the duty to consult First Nations and the jurisdiction of the federal courts is hugely significant (first-instance decision noted here). At issue was a foreign investment promotion […] Read more