Home2018 (page 2)

Yearly Archives: 2018

Political Costs as Control on the Notwithstanding Clause

The notwithstanding clause saga brought about by the Ford government is difficult for those born and bred on Supreme Court precedent. Law students are presented with an idea of the courts as benevolent actors of the public trust, hemming in cavalier legislatures acting on the passions of citizens. The saga, though, forces us to reckon with another sort of control ...

Read More »

ARL is Heading Back to the Supreme Court

As previously reported, Advocates for the Rule of Law recently sought intervenor status in the standard of review appeals before the Supreme Court. The Court has indicated that it intends to reconsider Dunsmuir – the seminal administrative law decision in Canada. These appeals will have a significant impact on administrative law, and, potentially, on the rule of law itself. It ...

Read More »

Why ARL is Seeking Leave to Intervene in the Standard of Review Appeals

On August 30, 2018, Advocates for the Rule of Law brought a motion for intervention at the Supreme Court of Canada in three appeals: Minister of Citizenship and Immigration v Vavilov,[i] Bell Canada v. Canada (Attorney General),[ii] and National Football League v. Canada (Attorney General).[iii] In a rare move, the Court’s judgment granting leave to appeal elaborated as follows: The ...

Read More »

ARL Seeks Intervenor Status in Standard of Review Appeals

Advocates for the Rule of Law has brought a motion to intervene in Minister of Citizenship and Immigration v Vavilov, Bell Canada v. Canada (Attorney General),and National Football League v. Canada (Attorney General), which will come before the Supreme Court of Canada on December 4-6, 2018. In its reasons granting leave to appeal, the Supreme Court stated as follows: “The ...

Read More »

The Original “Living Tree”

One of the main arguments in Canada in favour of the “living tree” is that it has deep roots in our constitutional tradition. As the Supreme Court of Canada said in Reference Re Same Sex Marriage, the living tree is “one of the most fundamental principles of Canadian constitutional interpretation.”[1] The argument goes something like this: beginning with the famous ...

Read More »

Deference and Delegation As Fickle Bedfellows

The administrative state, the supposed sword of progressives, is not necessarily so. In many countries, the administrative state was constituted on the urging of progressives to advance a social justice agenda. In the United States, progressive reformers during the New Deal era sought to make government a “prescriptive entity” designed to advance certain progressive goals. Executive orders reached a “heyday” during ...

Read More »

Canada’s Political Safeguards of Federalism: A Theory on Shaky Doctrinal Ground

When Canada abandoned its appeals to the Judicial Committee of the Privy Council in constitutional matters, the Supreme Court of Canada began to slowly re-shape the boundaries of our federalism jurisprudence. In doing so, it expanded the federal Parliament’s powers and articulated a diminished view of the judicial role. Its case law developed a “cooperative, flexible federalism”[1] defined by “a ...

Read More »

Applying the law (or not) to “a child born of a three-way”

In a decision delivered in April 2018, a Newfoundland court recognized three legal parents (two fathers and one mother), based on the throuple’s sexual relationship  The case starts with a Newfoundland throuple—two men and a woman in a sexual relationship—who had a child in 2017.[1] The identity of the mother is clear, both biologically and in law. However, the men could ...

Read More »

Congratulations Mark Mancini!

Mark Mancini, ARL’s Vice President and a regular article contributor, was called to the Ontario Bar on June 25, 2018. Mark has been a member of ARL for a couple of years and has contributed greatly to its expansion during that time. Despite just finishing his articles as a clerk at the Federal Court, Mark is already established as a ...

Read More »

Is Deference Possible Here? The Groia Decision and Disguised Correctness

In Groia v Law Society of Upper Canada, 2018 SCC 27, decided last week, the Supreme Court of Canada once again fractured over the approach to take to the judicial review of an administrative decision ― and, once again, the majority chose correctness review disguised as reasonableness as its methodology. The substantive issue in Groia was whether the Law Society was entitled to ...

Read More »