There are several points of general interest raised by the Supreme Court of Canada’s most recent administrative law decision, Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29. By majority, the Court reversed the Federal Court of Appeal (see my post). For a discussion of the merits — in which the Court restored what labour […] Read more

I have been following, via Trinity Western University School of Law’s invaluable Twitter feed, proceedings at the Nova Scotia Court of Appeal: I posted on the first-instance decision here. The questions from the bench on Day One did not augur particularly well for the Nova Scotia Barristers’ Society, but the judges have also probed the […] Read more

In my view, the Supreme Court of Canada’s commitment to deference is in tension with its institutional role as the country’s highest court. According deference to administrative decision-makers means favoring legal pluralism, permitting those decision-makers to put their own spin on rules of substantive and procedural law. But a court of final resort may feel […] Read more

When an administrative decision-maker hears argument but decides a point on another ground, what is the appropriate posture of a reviewing court? Is this a matter of procedural fairness, because it goes to the ability of the parties to make full and complete submissions, or is it a matter of substantive reasonableness, because it goes […] Read more

An old advertisement for Beamish, a tipple manufactured in my native Cork, not far from my alma mater, has the punchline: “Consistent, that’s why it’s different”. One of the advantages of relaxing the rules of stare decisis for administrative tribunals is that it allows decision-makers to change positions in response to shifts in facts, be they economic, […] Read more

Shortly after a majority of the Supreme Court of Canada wrote that when fundamental rights are engaged by an administrative decision, “reasonableness requires proportionality” (here, at para. 38), the members of the UK Supreme Court said something very similar in Pham v. Secretary of State for the Home Department, [2015] UKSC 19. The case was […] Read more

Where an administrative decision-maker has violated a fundamental right, how should courts review the decision? Should they apply the standards of constitutional law (a proportionality test, for example)? Or should they apply the standard grounds of administrative law (such as reasonableness)? The Supreme Court of Canada has written more than most on this question and […] Read more

How should we describe what administrative decision-makers do when they interpret statutory provisions? In my view, they are making/interpreting/doing “law”, even if it is infused with policy considerations in a way that the judicial function is (arguably) not. Does it follow that they should perform this “law” function in the same way that courts do? […] Read more

Here is a technical problem, discussed in Yellow Cab Company Ltd. v. Passenger Transportation Board, 2014 BCCA 329. When a decision-maker reconsiders, or refuses to reconsider a decision, what is the significance of the original decision for a judicial review application? As a general rule: [40]        Where a party has taken advantage of […] Read more

This is the last extract from my forthcoming article, “Canada’s Bi-Polar Administrative Law: Time for Fusion“. I detail how procedural and substantive review might be fused and, in particular, why traditionalists should not flinch. Download the paper here.   It is now necessary to consider how the two poles might be fused. One possibility is […] Read more