HomeCase Commentary

Case Commentary

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 ...

Read More »

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 ...

Read More »

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 ...

Read More »

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, ...

Read More »

Supreme Court Rejects a Legislative Duty to Consult in ARL’s First Intervention

The Supreme Court of Canada (SCC) has ruled that there is no duty to consult Indigenous groups at any stage of the law-making process.  This is an important ruling as the recognition of a justiciable duty to consult in the legislative process would have had very significant implications for the ability of federal, provincial, and territorial governments to pass laws ...

Read More »

Statutory Interpretation from the Stratasphere

Statutory interpretation presents problems of judicial subjectivity.[1] Though it is well-established that courts and advocates must look to the “text, context, and purpose” of a particular statutory provision to determine its meaning, little work has focused on what courts should do when purposes are stated at different levels of abstraction, or where the statute has multiple purposes which are seemingly ...

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 »

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 »

The Wall of Separation

The Supreme Court of Canada released its judgement in the Wall appeal last week. It’s a victory for clarity in what had become quite a confused case.  The Court, overturning both courts below, ruled that judges do not have authority to review the decision of an unincorporated religious body to expel one of its members. Confusion at the lower courts Randy Wall, the ...

Read More »