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Case Commentary

Not Just A Pillowfight: How the SCC Has Muddied the Standard of Review

Recently, Justice David Stratas of the Federal Court of Appeal released an extremely helpful summary of almost every aspect of administrative law in Canada. Administrative law students, practitioners, and academics would be well-served to carefully read the document. But Justice Stratas’ piece is far from merely descriptive—in it, he provides a number of recommendations for a return to sound and ...

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A Constitutional Pregnancy: A New Approach to Section 1 Following BC FIPA?

Can you get a little bit pregnant? Of course not. But recently, in BC FIPA, the Supreme Court of Canada held that it matters whether the government infringes constitutional rights by a little or a lot. The difference will determine the strength of evidence the government will need to adduce to justify a rights infringement under section 1 of the ...

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Parliament’s Post: The City of Hamilton Cannot Regulate Community Mailboxes

Recently, the Ontario Court of Appeal in Canada Post Corporation v Hamilton (City)[1] had an opportunity to revisit the doctrine of federal paramountcy in the context of the most exciting of subjects: community mailboxes. Below, I briefly review the facts of the case, and argue that the case should have been decided on the grounds of validity rather than operability. ...

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“Intolerant and Illiberal”: The B.C. Court of Appeal is Right to Insist on Tolerance for an Intolerant Institution

In a decision issued this week, Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423, the British Columbia Court of Appeal held that the Law Society acted unreasonably when its benchers, following its members, voted “not to approve” the University’s proposed law school, preventing its graduates from practicing in the province and causing it to lose the ...

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A Marriage Made in Britain: Section 121 and the Division of Powers

The New Brunswick Court of Appeal will hear the Crown’s appeal in R. v. Comeau this coming month. The issue for appeal is whether Justice LeBlanc of the New Brunswick Provincial Court got it right in finding that s.121 of the Constitution Act, 1867 prohibits both tariff and non-tariff barriers between the provinces, overturning the Supreme Court of Canada’s precedent ...

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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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The Decisions to Reject Trinity Western were not “Prescribed by Law”

This article appears in the current (Fall 2016) edition of the Christian Legal Journal, a publication of Christian Legal Fellowship, an intervener in Trinity Western University’s litigation in all three provinces.   Any state-imposed limit on a constitutional right or freedom must be “prescribed by law”, according to section 1 of the Charter. This requirement stems from the principle of ...

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Wilson v. AECL: A Missed Opportunity to Protect the Rule of Law in Administrative Law

This summer saw a sharply divided Supreme Court of Canada on many points. The case of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 illustrated this perhaps better than any other, with the Court issuing four separate opinions. Many issues are raised in the case, from whether certain non-unionized federally regulated employees can be dismissed without cause to the number ...

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R. v. Jordan is Judicial Legislation

On July 8, 2016, in R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada overturned its decision in R. v. Morin, [1992] 1 SCR 771. The Court is supposed to be the gatekeeper of the Constitution. However, in R. v. Jordan, it ignored the separation of powers and legislated “ceilings” in establishing whether an accused’s s. 11(b) “right ...

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Seven’s Wonders and Sixty Colours: More on the Interpretation of Section 7

In my last article, “Reaffirming the Case for Constraint“, I replied to Leonid Sirota’s article “How to do Constitutional Adjudication,” which was itself a response to my paper, “The Case for a Constrained Approach to Section 7.” Mr. Sirota also wrote a piece entitled “Seven’s Sins” in response to my original paper. I had intended to reply to “Seven’s Sins” ...

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