HomeAuthor Archives: Mark Mancini

Author Archives: Mark Mancini

A New Canadian Textualism Emerges from the Stratasphere

In Entertainment Software Assoc v Society of Composers, 2020 FCA 100, Stratas JA (for the Court) made a number of interesting comments about statutory interpretation in the administrative state and the role of international law in the interpretive activity. In this post, I review these comments, and agree with them wholeheartedly. This case is an important add-on to a growing list of ...

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Vavilov: A Step Forward

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 a net positive for the law of judicial review in Canada. The Court has done a ...

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Toronto v Ontario: Correcting Results-Oriented Reasoning

It is not often that I can write a post in full agreement with a judicial decision. Perhaps this says something about my constitution. No matter, the Court of Appeal for Ontario’s recent decision in Toronto v Ontario is an admirable decision that strikes all of the right notes when it comes to interpreting overlapping Charter rights and the use ...

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Abdicating Legislative Power: The Carbon Tax Case

If there is one aspect of Canadian administrative law that is relatively understudied, it is the constitutionality (or, less ambitiously, the desirability) of the delegation of legislative power from Parliament to the Cabinet and administrative actors. The recent Saskatchewan Carbon Tax Reference puts into stark relief the underdeveloped nature of the law in this area, and the stakes underlying the ...

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The “Return” of “Textualism” at the SCC?

Under the so-called “modern approach” to statutory interpretation, courts are instructed to take into account the text, context, and purpose of a statute. But perhaps because the “text, context, and purpose” recital is so commonplace, other difficult interpretive questions are masked under its patina. For example, which takes priority—text or purpose? The Supreme Court has said that clear text is ...

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Our Pythic Judges: SNC-Lavalin

In Ancient Greece, travelers from far and wide descended upon the Oracle at Delphi. Known collectively as the Pythia, these priestesses or women of Delphi, over generations, provided advice and counsel to anyone wishing to seek it. The Pythia were thought to channel the god Apollo. As the mythology of the Pythia grew, with kings, leaders, and leaders of armies ...

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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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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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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 ...

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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 ...

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