Administrative Law Matters
Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
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Building Legitimacy Brick by Brick
Paul Daly January 13, 2015
What follows is my contribution to a partly virtual book club organized by Osgoode’s Sonia Lawrence: the posts are collected here. The Round House is an incredibly rich and complex novel, a coming-of-age story told by a young Native American boy whose mother was brutally raped at the intersection between federal, state and reserve lines. […] Read more
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Rebottling Old Wine
Paul Daly January 8, 2015
A challenge for lawyers is to fit new concepts to old language. Law is in a constant state of flux, adapting always to new realities. Sometimes, however, doctrines change rapidly and without courts considering the knock-on effects on other doctrines. The problem of tribunal reconsiderations of their decisions is an example. Say tribunals may reopen […] Read more
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Fettering the Prerogative: the Sandiford Case
Paul Daly January 6, 2015
Some time ago, I was critical of a decision of the Court of Appeal for England and Wales that permitted the executive to fetter the prerogative. I had missed the Supreme Court’s endorsement of this analysis last summer: R. (Sandiford) v. Foreign and Commonwealth Secretary, [2014] UKSC 44. Lord Carnwath and Lord Mance put the […] Read more
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Reopening Decided Cases: a “Jurisdictional” Problem
Paul Daly January 5, 2015
Felix Frankfurter once described jurisdiction as “a verbal coat of too many colours”. Exhibit #4579009 is Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499, which features three sets of reasons on tribunals’ authority to reopen closed decisions (though the concurring reasons of Goepel J.A. contain mostly a brief treatment of the merits […] Read more
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A Few Thank Yous
Paul Daly December 31, 2014
Some nice news today from the 2014 Clawbies. My blog won in the Best Law Professor Blog category and the judges (Jordan Furlong, Steve Matthews and Simon Fodden) had something nice to say: Administrative Law Matters, by Université de Montréal Assistant Professor Paul Daly, isn’t just the best law professor blog in the country; we […] Read more
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Judicial Review and Secrecy
Paul Daly December 31, 2014
A new year is almost upon us. Here is a provocative thought for 2015. Does more judicial review of government action mean that more judicial review will be conducted secretively? Over recent decades, the grounds on which official action can be challenged have increased in number and scope. Legitimate expectations and factual errors are now […] Read more
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Reasons as Fundamental to the Task of Judicial Review
Paul Daly December 28, 2014
Much ink has been spilled on the role of reasons in administrative law. Reasons straddle the divide between process and substance: on the one hand, the obligation to give reasons is typically seen as an aspect of procedural fairness; on the other hand, the adequacy of reasons given for a decision will usually be treated […] Read more
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Some Last Words on Procedural Fairness
Paul Daly December 18, 2014
I am rusty on civil procedure — because I do not pay enough attention to Karim Renno’s torrent of excellent posts! — but I think I am entitled to a response to his reply to my defence of deference on questions of procedural fairness. Whether he wants a sur-reply is up to him; by then […] Read more
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Lawful Threats: Regulatory Law and Professional Conduct
Paul Daly December 17, 2014
Lawyer Ian Richler (Gowlings) has posted a fascinating comment on a revision to Ontario’s Rules of Professional Conduct. Now, rule 3.2-5 prohibits threatening “to make a complaint to a regulatory authority” in order to “gain a benefit” for a client. An exception is set out for “an application made in good faith to a regulatory […] Read more
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Provincial Non-Enforcement of Federal Criminal Law
Paul Daly December 11, 2014
Tension about the uniform application of federal criminal law is in the news again. There is a suggestion that Ontario may refuse to enforce Canada’s new prostitution legislation, enacted recently after the previous provisions were struck down by the Supreme Court of Canada. This recalls recent and ongoing controversies in North America: state legalization of […] Read more