Towards the beginning of his classic essay “The Core of the Case against Judicial Review“, Jeremy Waldron notes that his argument is not directed against review of executive action, that is, most of what we conventionally call administrative law. The exclusion has always struck me as strange. Waldron’s argument is that courts are ill-suited relative […] Read more

A background check on a teacher reveals criminal history. He is fired by the elected members of the local school board after a meeting held behind closed doors. He contests the decision and seeks to question three of the commissioners before an arbitrator. They refuse, citing privilege. Unsuccessfully, as it turns out: Fédération autonome de […] Read more

My post welcoming Evans J.A.’s recent suggestion that weight could be accorded to administrative determinations of procedural fairness questions has provoked some debate, some in the comments section of that post, some on Twitter and some in emails to me. Another Federal Court of Appeal decision is therefore timely: Canada (Transport, Infrastructure and Communities) v. […] Read more

A vigorous debate erupted in the comments to a recent post on deference on questions of procedural fairness. Recently, doctrinal orthodoxy has been challenged by several Canadian judges (a challenge based on Canadian developments but which ought also to be on the radar of those overseas) who have contended that procedural questions can no longer […] Read more

Consider paragraph 6 of Friday’s Supreme Court of Canada decision in the Nadon reference: [6]                              The practical effect is that the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio.He remains a supernumerary judge of the Federal Court […] Read more

As you probably know by now, the Supreme Court of Canada ruled on Friday that federal court judges are not eligible for appointment to its three ‘Quebec seats’: Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. Although retrospective legislation was introduced after the appointment of Justice Marc Nadon to the Court, […] Read more

There are two interesting aspects to Université McGill c. Ong, 2014 QCCA 458, a technical aspect about administrative-law doctrine and a substantive aspect about access to administrative justice. O was an employee of McGill University until she was dismissed for mishandling cash and impeding an investigation into missing funds. She vigorously contested the dismissal before […] Read more

The Irish Supreme Court recently released its judgment in Murphy v. Ireland, 2014 IESC 19. Of greatest general interest is the recognition that the applicant had a limited right of procedural fairness which imposed a duty on the Director of Public Prosecutions to give reasons to send him for a non-jury trial at the Special […] Read more

On Friday, the Supreme Court of Canada will hand down its decision in the “Nadon reference”. For further background — and my take on the key issues — you can download my submissions to the Senate Committee on Legal and Constitutional Affairs. Two posts by Michael Plaxton — here and here — also provide a […] Read more

I have posted Unreasonable Interpretations of Law to SSRN. Here is the abstract: Reasonableness has become the dominant standard of review of administrative action in Canada. Understanding what makes a decision unreasonable has become a critical issue for Canadian judges and jurists. The question I will address in this essay is: what does it mean […] Read more