A Functional View of Reasons: T-Mobile South, LLC v. City of Roswell, 574 U.S. ___ (2015)
Here is an interesting Supreme Court of the United States opinion on a statutory requirement to give reasons: T-Mobile South, LLC v. City of Roswell, 574 U.S. ___ (2015). T-Mobile wanted to build a cell-phone tower in Roswell. The City refused to give permission: the elected members of the Council adopted a motion to deny […] Read more
Fairness and the Common Law Duty to Consult
The English courts have in recent decades recognized a common law duty to consult as an aspect of the duty of fairness. It was the subject of a comprehensive treatment by the Supreme Court in R. (Moseley) v. London Borough of Haringey,  UKSC 56, though it is not clear whether Lord Wilson’s more expansive […] Read more
Procedural Fairness: a View from 20,000 Feet
Should courts defer to administrative decision-makers on procedural matters? As things stand (for the most part), judicial intervention is warranted whenever a decision-maker fails to live up to judicially developed conceptions of fairness. But this judicial supremacy sits uneasily with the modern, context-sensitive duty of fairness. Historically, automatic intervention whenever a decision-maker deviated from the […] Read more
The Unity of Legitimate Expectations?
One of the panels at the inaugural Public Law Conference last week (see my previous post) was on legitimate expectations. I was keenly interested, as I have agreed to contribute a chapter to a forthcoming (early 2016) collection on legitimate expectations in the common law world. Cora Hoexter was sympathetic to legitimate expectations as she […] Read more
The Basis of Fairness in Administrative Law: Osborn v. The Parole Board
The recent UK Supreme Court decision in Osborn v. The Parole Board,  UKSC 61 has already provoked interesting commentary on the relationship between the common law of procedural fairness and the European Convention on Human Rights. I have nothing to add to that commentary, but one of the things I find interesting about Osborn […] Read more
Mind your Metadata, Counsel!
These days, we are all very aware of the importance of metadata. Administrative decision-makers should be too: a failure to be fully aware of the implications of metadata nearly did for the respondent in Demaria v Law Society of Saskatchewan, 2013 SKQB 178.The applicant challenged, on numerous grounds, the Law Society’s refusal to admit him […] Read more
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
A Bad Day for NAMA
Ireland’s National Asset Management Agency won a High Court legal battle against Treasury Holdings earlier this week, but it may end up losing the war. Finlay Geoghegan J.’s judgment,  IEHC 297, cannot have been well received at NAMA headquarters. Over at NAMA Wine Lake, the editors wonder out loud “if indeed the Agency is […] Read more
A Successful Closed-Mind Argument in the Citizenship Setting
A basic principle of administrative law is that a decision-maker must approach its decisions with an open mind. Demonstrating that a decision-maker had a “closed mind”, however, is extremely difficult. A decision-maker bent on refusing an application come what may will, if clever enough, keep his or her prejudices to him or herself.Interestingly, the applicant […] Read more
Process and Substance: What Happens when the Decision-Maker Doesn’t Listen?
Another example from the Canadian courts of the thin line separating process from substance: Turner v. Canada (Attorney General), 2012 FCA 159. On this occasion, the determination that a question went to process is again plausible at first sight but troubling on closer inspection. The applicant here alleged that he was discriminated against by the […] Read more