Administrative Law Matters
Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
What Happens if you Overhear a Decision-Maker’s Deliberations?
A funny thing happened at the Tribunal Administratif du Québec recently. A hearing was conducted into the suspension of an individual’s driver’s licence by videoconference. One of the administrative judges was present at the hearing; the other joined from a remote location. When the SAAQ — the administrative agency that controls drivers’ licences — sought […] Read more
Québec’s Corruption Commission in Figures
A helpful overview from this month’s issue of L’actualité. I note that the budget is around the $15m mark. So far, it seems like money well spent. Quite a contrast from the Irish corruption inquiries, where the Mahon Tribunal alone is projected to cost €300m! Read more
Self-Represented Litigants and Administrative Tribunals
We know that administrative tribunals have plenty of scope to design their own procedures, which need not resemble those of a regular court. But there are limits, as the Québec Court of Appeal recently explained in a case involving a real estate agent who represented himself — unsuccessfully — at a disciplinary hearing.In Ménard c. […] Read more
Vote Obama to Save Federal Regulations!
That is the message of Cass Sunstein’s contribution to a New York Review of Books symposium on the upcoming U.S. Presidential election. Sunstein headed up OIRA for three years under President Obama.An extract: Of course the law imposes constraints; judges cannot strike rules down simply because they dislike them. But there is no question that […] Read more
Should Statutes be Interpreted in Light of Regulations?
A partial answer from the Nova Scotia Court of Appeal: yes.In McIntyre v. Nova Scotia (Community Services), 2012 NSCA 106, the applicant’s spouse had received a lump sum pension benefit, which meant that she had received an “overpayment” of benefits. There was no doubt that there had been an “overpayment” within the meaning of the […] Read more
The Ontario Court of Appeal Provides Some Reasonableness Guidelines
In passing in its otherwise unremarkable decision in Pastore v. Aviva Canada Inc., 2012 ONCA 642, the Ontario Court of Appeal had something interesting to say about reasonableness. Feldman J.A. (with whom Rosenberg J.A. and Swinton J. agreed) commented as follows:  Again, applying the Dunsmuir test for reasonableness, the delegate engaged in a […] Read more
Can Omar Khadr Apply for Habeas Corpus?
My colleague Stéphane Beaulac raises a question that has not (it seems) had any consideration: can Omar Khadr, now back in Canada, apply for habeas corpus? Khadr can apply for a conditional release next year, but perhaps he will not have to wait that long.Khadr can almost certainly apply for the Great Writ. The leading […] Read more
Duties of Fairness in the Disposal of Municipal Buildings
At first blush, the result in North End Community Health Association v. Halifax (Regional Municipality), 2012 NSSC 330 is striking. A municipality’s decision to sell an old school to a property developer was held to be unlawful because it breached a duty of fairness to local non-profit organizations and because it was sold at less […] Read more
Medical Marijuana and Fettering Discretion
One of the cardinal principles of administrative law is that a decision-maker should never fetter his or her discretion. A recent case involving a claim for reimbursement for medical marijuana illustrates the principle nicely: Heilman v The Workers’ Compensation Board, 2012 SKQB 361.A battery of pharmaceutical treatments were prescribed over the years for the applicant’s […] Read more
Sean Rehaag on the Luck of the Draw
Osgoode’s twitter feed alerted me yesterday that Sean Rehaag has an interesting empirical analysis of judicial review determinations by the Federal Court on SSRN. His dataset includes leave determinations and determinations on the merits in refugee cases.The title of his working paper is “The Luck of the Draw? Judicial Review of Refugee Determinations in the […] Read more