In a mammoth recent paper on Chevron deference, Gary Lawson and Stephen Kam trace the origins of the doctrine: Making Law out of Nothing at All (2013), 65 Admin Law Review 1 (draft). The paper is ably reviewed on Jotwell by Linda Jellum. What I found most striking, in view of Canadian courts’ desire to […] Read more

In a recent American case, Carter v. Welles-Bowen Realty, Inc, the question arose whether the rule that ambiguous penal statutes are to be construed in favour of defendants (the “rule of lenity”) could ‘trump’ the rule that courts are to defer to administrative interpretations of ambiguous statutes (Chevron deference).At issue was a regulatory provision preventing […] Read more

The comments of Evans J.A. in Qin v. Canada (Citizenship and Immigration), 2013 FCA 263 are obiter, strictly speaking, but they are comments by Evans J.A. and will carry a great deal of weight.There are two important aspects to Evans J.A.’s formulation of the rules for judicial review of administrative interpretations of law. First, where […] Read more

Not so long ago, I posted on “Deference and Reasonableness“. I have also just posted some thoughts on rationality. It is quite timely, then, that I recently came across the reasons of Robertson J.A. in Small v. New Brunswick Liquor Corporation, 2012 NBCA 53, a case decided last summer. They deserve careful reading by anyone […] Read more

Should courts defer to administrative decision-makers’ interpretations of the limits of their own statutory authority? The Supreme Court of the United States finally answered that question in the affirmative today, in City of Arlington v. Federal Communications Commission. I think the majority is absolutely right, as I explain below. Indeed, Scalia J.’s majority opinion is […] Read more

Kevin Stack has posted Interpreting Regulations on SSRN. Here is the abstract: The age of statutes has given way to an era of regulations, but our jurisprudence has fallen behind. Despite the centrality of regulations to law, courts have no intelligible approach to regulatory interpretation. The neglect of regulatory interpretation is not only a shortcoming […] Read more

I have previously blogged about the place of precedent in modern Canadian administrative law. The basic idea is not difficult to grasp. In Canada there is no presumption that there is a “right” answer to any question of law or discretion that arises before administrative bodies. Accordingly, administrative bodies are not bound by their previous […] Read more

The Supreme Court of the United States recently cast a critical eye over the concept of Auer deference (so called even though the seminal case is actually Bowles v. Seminole Rock & Sand Co.). When administrative bodies promulgate rules, regulations and policies to fill in the gaps in statutory provisions, their promulgations may themselves have […] Read more

Fascinating decision here from the District Court for the District of Columbia. America’s National Labor Relations Board has been at the centre of controversy recently because of President Obama’s inability to appoint new members. Before he made recess appointments to restore the full complement of members, the Board took an important decision which would have […] Read more