Administrative Law
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Vavilov: A Step Forward
**This post originally appeared on Advocates for the Rule of Law** Today, the Supreme Court of Canada released its decisions in Vavilov and Bell/NFL. I have previously summarized the facts of these cases and analyzed them here (Vavilov) and here (Bell/NFL). Overall, today’s decisions (a 7-2 decision, Abella and Karakatsanis JJ concurring in result) are Continue reading
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Because It’s (The End of) 2019: Focusing on Legislative Meaning in Judicial Review
For Canadian legal watchers, specifically administrative law aficionados, 2019 has been a year of frustration and “confusion and contestation.” On one hand, we await guidance from the Supreme Court in Vavilov and Bell/NFL regarding the standard of review of administrative action. In other ways, we have seen interesting trends from the Supreme Court on other Continue reading
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Can the Administrative Process Achieve Social Justice?
Can administrative law achieve any ideal of social justice? The answer is perhaps yes. But there is nothing built-in the system to encourage this result. For that reason, deference to administrators because of the political aims they might pursue is a week reed on which to rest a more general case for deference. This much Continue reading
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CARL v Canada, 2019 FC 1126: Administrative Delegation and Guidelines
How far can an administrative agency go before it fetters its decision-making discretion? This is an important practical question. On one hand, the Federal Court of Appeal has recognized that agencies can issue guidelines—even in absence of any legislative authorization to do so (Thamotharem, at para 56), in part because agencies are masters in their Continue reading
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The Empire is Still Strong: A Response to Prof. Daly
Over on Administrative Law Matters, Prof. Daly writes that “[a]nti-administrativists have not had a good couple of weeks.” So his argument goes, in the last number of years “the administrative state in the United States has been under sustained attack, traduced as illegitimate and a betrayal of the commitment of the Founding Fathers.” This “cartoonish Continue reading
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All or Nothing At All?: Restricting the Growth of the Administrative State
Non-delegation limits do not spell the end of administrative government. Continue reading
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Judges are Subject to Law, Too
Last summer, I wrote a blog post about a concerning case out of the Federal Court, Girouard v CJC. The gist of the case was the claim by the Canadian Judicial Council (CJC) that their reports, recommendations, and decisions in the course of the investigation of a judge were not subject to judicial review under Continue reading
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The New Administrative Law II: Why Defer?
Part II of a two-part series on administrative law Continue reading
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The New Administrative Law
Part I of a two-part series: why we need to reconceptualize the administrative state and our reasons for deference. Continue reading
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The Diceyan Trope
Metaphors, labels, and particular phrases seem to be a constant theme running through Canadian law. In virtually every area of public law, the Supreme Court deploys clever labels and metaphors to convey ideas that are bundled with certain inferences or assumptions about the ideas themselves. The most famous, perhaps, is the living tree model of Continue reading
Double Aspect 