HomeTag Archives: administrative law

Tag Archives: administrative law

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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Why ARL is Seeking Leave to Intervene in the Standard of Review Appeals

On August 30, 2018, Advocates for the Rule of Law brought a motion for intervention at the Supreme Court of Canada in three appeals: Minister of Citizenship and Immigration v Vavilov,[i] Bell Canada v. Canada (Attorney General),[ii] and National Football League v. Canada (Attorney General).[iii] In a rare move, the Court’s judgment granting leave to appeal elaborated as follows: The ...

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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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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 ...

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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 ...

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The Dark Art of Deference: Dubious Assumptions of Expertise on Home Statute Interpretation

The 10th anniversary of Dunsmuir presents an opportunity to revisit perhaps its most controversial aspect: the seeds it planted for a presumption of deference on home statute interpretation. As Professor Daly notes, the presumption is a “black hole” which engulfs questions of statutory interpretation in administrative law: Paul Daly, “Unreasonable Interpretations of Law” in Judicial Deference to Administrative Tribunals in ...

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RIP Reasonableness

 The Supreme Court recently issued its decision in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3, which may, or may not, be another sign that the Court’s love affair with deference to administrative decision-makers is coming to an end ― in practice if not yet in theory. I ...

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Getting Back to the Basics of Judicial Review

One could scarcely find an area of law so muddied as administrative law. In a recent blog post on Double Aspect,  Leonid Sirota argues (omitting some far more colourful language) that our courts continue to struggle with reconciling the basic concepts of parliamentary supremacy and the rule of law, which are said to be in conflict with one another. The ...

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