internal standard of review | Page 2
Consistency in Administrative Adjudication: Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration), 2019 FC 1126 and Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518
In two important recent decisions, Canadian courts have had to consider the lawfulness of internal administrative arrangements designed to promote consistent decision-making. On both occasions, the arrangements ran afoul of the principles of administrative law. In Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518 a process of peer review of draft […] Read more
Confusion and Contestation: Canada’s Standard of Review
As all but the newest readers of this blog are aware, the Supreme Court of Canada should, sometime this year, release a trilogy of decisions intended to clarify the Canadian law of standard of review. It is by now very clear that the stakes are quite high. A tour of recent appellate and first-instance decisions […] Read more
Year in Review
My blogging year has been dominated — almost bookended, even — by two symposiums, one (held jointly with Double Aspect) to mark the tenth anniversary of the Supreme Court of Canada’s decision in Dunsmuir v New Brunswick (see here), and another on a United Kingdom Supreme Court appeal concerning ouster or privative clauses, published on Administrative […] Read more
Judicial Review, Proportionality and Appellate Standards: R(AR) v Chief Constable of Greater Manchester Police [2018] UKSC 47
What should an appellate court do in an appeal from an application of the proportionality test by a lower court? In his judgment for a unanimous UK Supreme Court in R (AR) v Chief Constable of Greater Manchester Police [2018] UKSC 48, Lord Carnwath concluded that the appellate court need not conduct the proportionality analysis […] Read more
Dunsmuir v. New Brunswick – the Sexiness of Standards of Review (Nicolas Lambert)
Nicolas Lambert, Faculté de droit, Université de Moncton If two administrative lawyers met in a bar, chances are they would succeed in having a conversation in which no one but them would understand what is being discussed. Another likely possibility is that even if they agreed with each other politically and morally, their ways of […] Read more
The Reasons for Reasons: External and Internal Pressures For a General Duty to Give Reasons
What follows is a longer version of a short note written for Per Incuriam, the termly publication of the Cambridge University Law Society. As is well known, perhaps even notorious, there is no general common law duty to give reasons for administrative decisions. Even those judges who seem in favour of recognising a general duty […] Read more
Reasonableness Review in Action: Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38
An interesting aspect of the Supreme Court of Canada’s recent decision in Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 is the application of reasonableness review. The question was whether certain items of hockey equipment used by goalkeepers are a “glove, mitten or mitt” or an “article of plastics”, an important question because different tariffs […] Read more
Internally Appealing: Recent Canadian Cases on Internal Administrative Appeals
Regular readers will know that I have been following very closely the Canadian case law on internal administrative appeals. Three recent decisions, two from the Federal Court of Appeal on the Refugee Appeal Decision (the body that first prompted my interest in the subject) and one from the Prince Edward Island Court of Appeal (h/t […] Read more
Values, Doctrine and Decisions in Judicial Review of Administrative Action
In his London School of Economics Ph.D. thesis, Dean Knight offers an interesting theoretical perspective on judicial review doctrine. Grouping writers and judges into four broad groups, ranging from those who prefer more formalistic, bounded approaches to those who embrace thorough contextual inquiry, he assesses each group against Lon Fuller’s ‘internal morality of law’. Knight’s […] Read more
Section 96, Statutory Tribunals and Judicial Review
My preoccupation with the internal standard of review issue has led me to wonder whether it would even be constitutionally permissible for a Canadian legislature to require an administrative body to conduct judicial reviews. The idea is not entirely far-fetched: the UK’s new tribunal system has just this feature, with the Upper Tribunal required on […] Read more