Another copyright decision from the Supreme Court of Canada, another discussion of the standard of review — the “prodigal child” of Canadian law (at para. 185)* — and, again, sharp disagreement between Rothstein and Abella JJ: Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57. At issue was the application of the principle of […] Read more

Apologies for the title. Mentioning issue estoppel would have caused my page views to crash through the floor, which would have been a pity because there is a recent case that raises an interesting technical point about issue estoppel and standard of review. In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 the […] Read more

“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

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

An interesting question, answered in Edmonton (Police Service) v Alberta (Law Enforcement Review Board), 2014 ABCA 267. A complaint was made against a police officer but dismissed by the Chief of the Edmonton Police Service after an internal review. The complainant appealed to the Board. A report of the internal review was made available for […] Read more

Canadian decisions on internal appellate review are coming thick and fast. Another one arrived last week, with some media fanfare: Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. Here, Phelan J. gave the Refugee Appeal Division a very broad role indeed. Rebuking the Division for applying judicial review standards to an internal appeal, he […] Read more

Here are two contrasting Court of Appeal decisions relating to human rights decision-makers’ ability to hear late-filed complaints: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 and Izaak Walton Killam Health Centre v. Nova Scotia (Human Rights Commission), 2014 NSCA 18. In the latter, the decision-maker proceeded pursuant to […] Read more

I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year. This is the latest in a series of mini-posts. Download the whole essay here. A. The Rule of Law My discussion of the rule of law as an […] Read more

In both Canada and the United States, considerable jurisprudential effort has been expended on identifying “standards of review” of administrative action. Standards of review refer to the tests applied to determine whether a court should strike down administrative decisions.Most of the time, when administrative lawyers speak of “deference” they have in mind a standard of […] Read more

A troubling controversy is emerging about the decision of a couple of federal adjudicative tribunals, those charged with social security and refugee appeals, to refuse to publish all of their decisions. Those who regularly represent clients in these appeals are complaining. There is no general rule even that all judicial decisions be published. In courts […] Read more