HomeAuthor Archives: Gerard Kennedy

Author Archives: Gerard Kennedy

20 Things to Be Grateful For as Administrative Law Enters the 2020s – Part III

So here we are, on the penultimate day of 2019. When this year began, I was not at all optimistic that the state of administrative law would improve with Vavilov’s release. But now I’m writing a third blog post on my gratitude! So never say surprises cannot happen… 14) Most alarming interpretations of Newfoundland Nurses repudiated. The Supreme Court’s decision ...

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20 Things to Be Grateful For as Administrative Law Enters the 2020s – Part II

On Monday, I began the expansion of my list of twenty important – and positive – lessons from last week’s Vavilov decision. Now, I continue… 8) Access to justice can be facilitated by either reasonableness or correctness review depending on the circumstances. Defenders of reasonableness review frequently defend it on the basis that it facilitates access to justice. This is ...

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20 Things to Be Grateful For as Administrative Law Enters the 2020s

Humans often don’t evaluate an experience in light of how good it is, but rather against how much it met/failed to meet/exceeded our expectations. And on that front, the Supreme Court’s decision in Minister of Citizenship and Immigration v Vavilov delivered in spades. After years of lamenting administrative law decisions coming from the Supreme Court, we have what looks like ...

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The Political Consequences of Deference are not Always the Same

In my last post on this blog, I commented and mostly praised two recent blog posts at Double Aspect by Mark Mancini from earlier this month calling for less deference to administrators in judicial review, unless a statute explicitly calls for such deference. But after I began drafting my response, a new development arose that now calls for a brief ...

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Deference to Administrators Must be Legislated not Assumed

Earlier this month, Mark Mancini wrote two very thoughtful blog posts on the Double Aspect blog, attempting to bring administrative law back to first principles. These intriguing posts are worthy of commentary. I will respond to Mancini’s two posts today, and follow up next week with an addendum in light of the Supreme Court of Canada’s recent decision in Canada ...

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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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The Notwithstanding Clause is no Longer the Nuclear Option

Section 33 of the Canadian Charter of Rights and Freedoms – better known as the “notwithstanding clause” – is one of the most controversial parts of the Canadian constitution. Despite being an integral part of the formation of the Charter, commentators such as Andrew Coyne have suggested that the provision is “dead letter” or “taboo”. But on Monday, Saskatchewan Premier ...

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Judge Gorsuch’s Consequential Views on Administrative Law

Many of Donald Trump’s actions during his first weeks as President have understandably unsettled much of the world. However, there are already hopeful signs that they will be resisted by some combination of public protest, the courts, and/or, at the very least, his successor. So the recent nomination of 49-year old Court of Appeals Judge Neil Gorsuch to the United ...

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Garland Gets a Lump of Coal; So Does the Perception of SCOTUS

The United States presidential election of 2016 will be analyzed for decades if not centuries. Most of that analysis will concentrate on the two candidates, and their respective campaigns and supporters. But as far I am concerned, one of the greatest tragedies of the election was entirely attributable to the Republican-controlled Senate. I am speaking, of course, of the Chamber’s ...

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The Correct Approach to Contractual Interpretation

The Supreme Court of Canada’s freshly released Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. provides welcome clarification to contract law generally and insurance law specifically. By holding that appellate courts are to review interpretation of “standard form” contracts on a correctness standard, the court protects the rule of law. The decision should also promote access to civil justice. Background ...

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