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

Canadian judicial review of administrative action is structured around two poles: substantive review and procedural review. On matters of substance, the administrative decision maker is generally accorded deference by the reviewing court. On matters of procedural fairness, the court accords no deference, and determines the “correct” process. The author argues that this distinction is indefensible […] Read more

I have been bothered for about a month now by a hypothetical question I received from an audience member at a talk I gave at the end of October. I was explaining some cases which hold either (a) that plainly inadequate reasons make a decision unreasonable or (b) the absence of sufficient reasons makes a […] Read more

The Supreme Court of Canada had not addressed a challenge to the vires of delegated legislation since reformulating the framework for judicial review of administrative action in Dunsmuir until today’s decision in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64. A good summary is available here.The Court took a classical […] Read more

Just a very brief note on a couple of recent first-instance decisions that caught my eye. It has been suggested (para. 22) that the Supreme Court of Canada has recently indicated a strong preference for deferential judicial review when decision-makers are interpreting their constitutive or “home” statutes. Nevertheless, the categories of jurisdictional error and general […] Read more

Quick and brutal. The webcast of the hearing in Canada (Attorney General) v. Kane, 2012 SCC 64, was barely up on the Supreme Court’s website before the appeal was allowed. Only 17 days elapsed between the hearing on November 6 and this morning’s per curiam opinion.Evans J.A. delivered a complex judgment in the Court of […] Read more

The Supreme Court of Canada took the (in my view) reasonable step in Newfoundland Nurses, 2011 SCC 62 of separating procedural review for failure to provide reasons from substantive review for reasonableness. One concern that might be voiced in response is that rolling a procedural right to reasons into substantive review may give too much […] Read more

Justice Stratas voiced some interesting thoughts on the meaning of reasonableness and context in Canada (Attorney General) v. Abraham, 2012 FCA 266: [44]           For example, where the decision-maker is considering a discretionary matter that is based primarily on factual and policy matters having very little legal content, the range of possible, acceptable […] Read more

The Ospreys of the title are not the Welsh rugby franchise (often engaged in fierce competition with my home province of Munster), but rather the fish-eating birds of prey found near water. When unlawful government action threatens such creatures, they cannot go to court to defend themselves. Who can? The UK Supreme Court recently had […] Read more

The applicant in Francis v. Canada (Immigration and Citizenship), 2012 FC 1141 was concerned that she had not got a fair shake before the Refugee Protection Division, on the basis of comments made by the decision-maker in previous academic writings. He had suggested that the refugee protection system gave rise to anomalies, and cited the […] Read more