On Friday, March 7, 2008, the Supreme Court released Dunsmuir v. New Brunswick (2008 SCC 9), a stark reversal of the last decade of administrative law jurisprudence on the issue of the standard of review. This decision seeks to quiet the steady drumbeat of criticism of the Court's Standard of Review jurisprudence while remaining true to the culture of deference. The centrepiece of the judgment is the collapsing of the standard of patent unreasonableness and the standard of reasonableness simpliciter into a single standard of reasonableness. While this move responds to the concern over arcane and artificial distinctions between shades of unreasonableness, it is unlikely to solve the standard of review dilemma, for the reasons explored below [note, a version of this comment was posted under the title "Dunsmuir: Plus ça change" with TheCourt.ca]
Continue reading "Dunsmuir: Can the Standard of Review be Solved?" »
There have been a considerable number of allegations of late that the Federal Government has been improperly interfering with independent Federal Agencies, Board and Commissions (or, for short, Federal ABCs). From a dispute about veiled women voting to a dispute about shutting down a nuclear facility, both the diversity and the importance of independent administrative ABCs has been on display. But just how independent are they? When we refer to a body as at “arm’s length” from the Government, does that imply it still may be within the Government’s grasp. Below I suggest these administrative bodies may not be as independent as we think they are, but that their vulnerability to government interference is precisely what is intensifying public scrutiny of government and enhancing public support for administrative justice.
Continue reading "Veils, Isotopes and the Meaning of “Independence”" »
Had Suzanne heard the news in recent months she'd probably think twice before serving Leonard Cohen tea and oranges that came all the way from China. With reports about recalled toys, pet food poisoning and the FDA ban on certain imports of seafood from China, there is no exotic romance in such tea and oranges anymore. No wonder American politicians and government officials step in to protect consumers against such safety dangers. As Hillary Clinton said "I don't want to eat bad food from China or have my children having
toys that are going to get them sick." Nor do I.
Continue reading "Tea and oranges that come all the way from China" »
Administrative law is often obscure but the Supreme Court
over the past year or two has been embroiled in a particularly technical
administrative law question around which tribunals have jurisdiction over which
kinds of disputes and whether more than one tribunal may have jurisdiction over
the same dispute. Like many technical questions in administrative law, however,
there is a basic question of fairness and justice underlying the debate. The
stakes for Canadians who encounter the justice system (and far more of this
group do so before administrative tribunals than before courts), could not be higher.
Continue reading "How the Supreme Court of Canada Missed the Point about Human Rights Jurisdiction…" »
For over fifteen years, there has been a growing dissatisfaction with the human rights process in Ontario. This dissatisfaction has been expressed by members of equity seeking communities, by human rights advocates and by lawyers practicing in the area of human rights. During that time, there have been four government-initiated reviews of human rights enforcement systems in Canada, one specifically directed at the Ontario legislation, one dealing with the very similar federal human rights complaint system, and two reviewing the systems in other provinces. Despite the fact that each of these reviews made very similar recommendations for reform of the human rights complaint process, to date no major reform has been undertaken in Ontario. That is, until now.
Continue reading "Human Rights Reform in Ontario: A Time for Change" »
Administrative Law (and the same might be said of Constitutional Law) is for losers. People who receive decisions from government that they like do not challenge them in Court. Principles of fairness and reasonableness are developed in the context of procedural fairness to losers in public decision-making - the student expelled from school, the professional denied a license to practice, the company fined for regulatory infractions, the vanquished in a labour dispute. This is, in some respects, as it ought to be. Persuading losers that an adverse decision was fair and reasonable is one of the central characteristics of the rule of law. But seen from another perspective, that of the integrity of public decision-making, whether a decision is positive or negative for a particular party is beside the point.
Continue reading "Is Administrative Law Only for Losers? Lessons from Gomery" »