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Military Justice and Stare Decisis: ARL Returns to the SCC

For the third time in little more than a year, the Supreme Court of Canada has granted Advocates for the Rule of Law leave to intervene to assist the Court in addressing a significant public law issue. This time, ARL will make submissions on when intermediate appellate courts may depart from their own binding precedents. This question of horizontal stare ...

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Substantive Equality: Some People are More Equal Than Others

Double Aspect, the law blog of Leonid Sirota and Mark Mancini, recently hosted The 12 Days of Christmas, in which contributors offered their picks for the five worst public law Supreme Court of Canada decisions between 1967 and 2017. My list included Andrews, which I criticized for starting the mess that the Supreme Court has made of section 15(1) of ...

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In Defence of Substantive Equality

In a guest post on the Double Aspect Blog over the Christmas break, Professor Bruce Pardy (Queen’s Law) picked the Supreme Court’s decision in Andrews as one of the worst decisions since 1967. While I believe Professor Pardy offered some important criticisms of the Court in his post, I must respectfully disagree with his attack on the Andrews decision and ...

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Unearthing Canadian Originalism: Reflections on my Conversation with Justice Stratas

Earlier this month, I had the true privilege of taking part in a discussion with Justice David Stratas of the Federal Court of Appeal, who is one of Canada’s most prominent jurists, on the subject of statutory and constitutional interpretation. The conversation was part of the Runnymede Society’s annual Law & Freedom Conference. Justice Stratas and I covered a lot ...

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Ontario Court of Appeal Underscores the Importance of Adversarial Argument

Last week’s unusual Ontario Court of Appeal decision in Welsh v Ontario made headlines as the Court quashed an order that $1.5 Million dollars be paid to a charity. The facts of the case make the result a bitter pill to swallow. But despite this result, and the unusual statutory and factual matrix in which the case emerged, the decision ...

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A Matter of Deductions: Resolving Uncertainty in MVA Litigation

As any Ontario personal injury lawyer knows, the common law of damages has been modified significantly in the context of motor vehicle accidents, to the benefit of defendants and their insurers. The legislature has enacted various measures to limit the ability of plaintiffs to recover in tort. It has done so for two reasons: 1) to help limit the number ...

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Statutory Interpretation in Canadian Administrative Law

Over on Professor Daly’s blog Administrative Law Matters, Professor Audrey Macklin wrote what I would characterize as a confessional: an admission that the law of judicial review in Canada may be beyond repair. What Prof. Macklin proposes, in light of this realization, is a renewed focus on the principles of statutory interpretation, rather than a myopic focus on standard of ...

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ARL at the Supreme Court

Earlier this month, Advocates for the Rule of Law appeared as an intervenor in the Bell/NFL and Vavilov appeals at the Supreme Court. Prior to the hearing, the Court advised the parties that these appeals would present an opportunity to reconsider the Court’s seminal decision in Dunsmuir v. New Brunswick, released a decade ago.  Consequently, various organizations, including ARL, moved to intervene in the case. ...

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The Administrative Law “Trilogy”: The Stare Decisis Trap

This week, the Supreme Court of Canada finally heard the consolidated appeals in Bell/NFL and Vavilov. ARL, expertly represented by Adam Goldenberg, put forward our submissions on the matter, which focus on a return to the basis of the law of judicial review: its statutory character. During the hearings, one particular line of questioning posed a problem for this  argument, ...

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The “Cultural Appropriation” Criticism: Lousy Analogy and Censorship in Disguise

On October 23, alongside my colleagues Konstantia Koutouki of University of Montreal, as well as Safie Diallo and Alexandra Lorange, I partook in a discussion initiated by the McGill Runnymede Society, on the criticism of cultural appropriation in the arts and literature. In preparation for this discussion, I discovered more problems with the notion of cultural appropriation than time would ...

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