tag:blogger.com,1999:blog-7665355359899630254.comments2023-12-20T07:29:21.752-05:00Administrative Law MattersPaul Dalyhttp://www.blogger.com/profile/13433629868698007121noreply@blogger.comBlogger127125tag:blogger.com,1999:blog-7665355359899630254.post-29728998102637424072014-07-27T19:41:23.540-04:002014-07-27T19:41:23.540-04:00I have been looking at this decision more closely ...I have been looking at this decision more closely and contrasting it with Inuit Tapirisat ([1980] 2 S.C.R. 735) where, at p. 754 Estey, J says of the power in s. 64 of the National Transportation Act: "This is legislative action in its purest form where the subject matter is the fixing of rates for a public utility such as a telephone system." This power is substantially the same as the s. 40 power. It was applied to decisions about telephone rates charged by Bell Canada. Why is it that the SCC in para 51 now says of the same sort of power exercised in relation to freight rates charged by CN: "the Governor in Council does not act in a legislative capacity when it exercises its authority under s. 40 of the CTA to deal with a decision or order of the Agency."? What is different?John Mark Keyesnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-77550761194044074262014-06-12T17:19:10.662-04:002014-06-12T17:19:10.662-04:00Professor Daly,
Very interesting post. I suspect...Professor Daly,<br /><br />Very interesting post. I suspect I know the answer to this question, but indulge me: how concerned are you that your radical approach will essentially boil down to administrative decision makers reaching whatever result they please, relatively clear statutory wording to the contrary notwithstanding? Charter values, as you know, are myriad and extremely abstract. They include such values as democracy, liberty, autonomy, all the freedoms, equality, and the Charter value to swallow all Charter values, "human dignity". It would be the rare result that could not be achieved by relying upon one of the full range of uncontested 'goods' in a democratic society's lexicon. <br /><br />At risk of sounding (and being) overly-dramatic, if ADMs can ignore principles of statutory interpretation, and need identify no ambiguity to bring Charter values to bear, what's the point of writing down laws at all? Or rather, why would we call them laws? Why not just create an agency, set out a range of relatively comprehensive but optional guidelines, and go from there?<br /><br />Warm regards,<br /><br />- Concerned in CanadaAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-24317832787916961622014-05-28T18:56:32.067-04:002014-05-28T18:56:32.067-04:00I wish Rothstein J had dealt more substantively wi...I wish Rothstein J had dealt more substantively with the fact that this case involved a <i>disagreement</i> between <i>two</i> bodies with statutorily-defined powers about the jurisdiction of one of them. There is literally half a sentence on this at the end of para. 59.<br /><br />If the basis of deference is technocratic expertise, then it would seem like the Agency is the one who should be deferred to. If the basis is democratic accountability, then that points to Cabinet, but that seems like a bad rationale for an issue of statutory interpretation.<br /><br />I would have thought this is a classic issue of two statutory bodies disagreeing about jurisdiction, which means correctness review by the court on <i>Dunsmuir</i>.PithLordhttps://www.blogger.com/profile/03856231065567376894noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-60258053670749207312014-05-26T09:31:55.460-04:002014-05-26T09:31:55.460-04:00I agree that this is a helpful decision, confirmin...I agree that this is a helpful decision, confirming that the standard of review analysis applies to Cabinet decisions and providing a clear example of a question that attracts correctness and another that does not. The correctness question involves the scope of the Cabinet's review authority; this is what generally passes for jurisdiction. <br /><br />But what about other forms of Cabinet authority, notably those to make delegated legislation (in the sense of generally applicable rules)? The tantalizing reference to Katz in para. 51 suggests that it is a different kettle of fish. So we have to wait for clarification on why Catalyst applies the standard of review analysis to delegated legislation (albeit municipal), while Katz and the Broadcasting Policy Reference do not. It is hard to see any principled basis for skipping over standard of review on these questions.John Mark Keyesnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-85008852821475798942014-05-19T11:11:46.120-04:002014-05-19T11:11:46.120-04:00You can see the same phenomenon, and if anything m...You can see the same phenomenon, and if anything much more dramatically, in the econoblogosphere. <br /><br />Just a couple of examples - the catch by a master's student of a spreadsheet error in the Reinhart-Rogoff paper on government debt and growth, and the tireless promotion by Scott Sumner of an esoteric model of monetary policy - nominal GDP targeting - to the point where approving noises are made by governor of the Bank of England, among others. Anonymoushttps://www.blogger.com/profile/09962688791651714597noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-52775025979401301372014-05-02T01:08:54.324-04:002014-05-02T01:08:54.324-04:00The tribunals were not set up with fairness in min...The tribunals were not set up with fairness in mind, they are the new hand picks of a more efficient denial machine with little to zero recourse.Gary Shelleyhttps://www.blogger.com/profile/13478183375942561714noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-68244635518187830772014-04-25T02:57:36.323-04:002014-04-25T02:57:36.323-04:00This comment has been removed by a blog administrator.Law firms in Londonhttp://www.5sah.co.uk/noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-65649533341960387522014-04-17T15:22:31.892-04:002014-04-17T15:22:31.892-04:00Hold your horses!
This is just the save the date...Hold your horses! <br /><br />This is just the save the date announcement. More details to follow next week :)Paul Dalyhttps://www.blogger.com/profile/13433629868698007121noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-76504960186151152512014-04-16T19:16:32.992-04:002014-04-16T19:16:32.992-04:00How do we register?How do we register?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-59818504584256164192014-04-16T09:57:17.214-04:002014-04-16T09:57:17.214-04:00This was a great article and will span discussion ...This was a great article and will span discussion about the fairness procedures and how they relate to range of outcomes.Paul -DUI lawyer calgaryhttp://www.gracialaw.ca/impaired-and-driving-offences/noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-88636076682133223162014-04-15T13:04:26.926-04:002014-04-15T13:04:26.926-04:00To be fair, Newfoundland Nurses involved the revie...To be fair, Newfoundland Nurses involved the review of an arbitration decision and responded to a particular problem: interventionist judges fastening on minor missteps in order to characterize a decision as unreasonable. That was inappropriate and deserved a response.<br /><br />But Newfoundland Nurses, and para. 48 of Dunsmuir, have now been taken as authorizing haphazard decision-making which reduces public law to a one-way assertion of authority: "Here is the record, here is our conclusion". Hard to get further from deference as respect...Paul Dalyhttps://www.blogger.com/profile/13433629868698007121noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-61844907561654033942014-04-15T13:02:25.124-04:002014-04-15T13:02:25.124-04:00This may on the surface be a tricky issue between ...This may on the surface be a tricky issue between federal and provincial law but at its basis is POWER. The power of the workers compensation board to use any kind of legalistic manoucer to dent compensating injured workers. Disgusting.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-30660718372519279312014-04-14T20:17:20.679-04:002014-04-14T20:17:20.679-04:00It's always bothered me that the SCC happily a...It's always bothered me that the SCC happily adopted Dyzenhaus' "respectful attention to the reasons that were, or could have been, offered" (too lazy to check if this is the exact quote but it's at least right in substance!) formulation for deference and then done so little to encourage reasoned decisionmaking. Even Newfoundland Nurses, which brings reasons to the fore as an explicit part of the reasonableness calculation, asks the "or could have been offered" part of that formulation - there's no demand for consistently reasoned decisions. All seems rather inconsistent with the supposedly applicable approach to review since Baker.Eddie Clarkhttp://www.twitter.com/Publicwrongsnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-78528591959745625312014-04-04T05:52:40.295-04:002014-04-04T05:52:40.295-04:00It also seems an odd detour back to pre-Nicholson ...It also seems an odd detour back to pre-Nicholson insistence on grounds of review. One of the idiosyncratic things about Canadian admin law for the past 30 years has been an emphasis on standard of review and a downplaying of grounds. Are we going to see people arguing irrelevant considerations or improper purpose more explicitly in the wake of Katz?alat sexhttp://serbaobat.com/noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-37054167676410552512014-03-28T15:31:44.474-04:002014-03-28T15:31:44.474-04:00This is the same thing I hammered on about re Osbo...This is the same thing I hammered on about re Osbourn. Courts around the common law world insist that procedural fairness is reviewed on a correctness standard (to the extent that not-Canada countries consider standard of review, correctness is pretty much implicit here), but then give themselves room to de facto defer by saying that the doctrine is inherently contextual and the decisionmaker's choice of procedure is part of the context. <br /><br />I think it comes down to this weird need for courts to assert ownership over procedural fairness. The history of the doctrine is the history of executive agencies trying to act like courts and the courts telling them if they're going to do that they'd better have court-like processes. By imposing a correctness standard, no matter how much de facto deference there is, they still retain the final say on what fairness requires, and court-like adjudicative procedures remain the touchstone. If you put the deference where it really should be - in the standard of review - the content is up for grabs. Under a reasonableness standard, you don't have this platonic idea of an adjudicative process as a shining beacon of fairness. Instead, the choice of the decisionmaker - and their reasons for choosing a process that might be far from this adjudicative ideal - become the starting point, and the doctrine becomes a lot more flexible. I think this would be a positive step, but suspect it might take a while before the SCC talks itself into letting go of the reins.Eddie Clarkhttp://www.twitter.com/Publicwrongsnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-20763169453452496812014-03-26T17:23:47.068-04:002014-03-26T17:23:47.068-04:00Very cogent; thank you.Very cogent; thank you.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-12097032753872432542014-03-23T21:00:51.488-04:002014-03-23T21:00:51.488-04:00Good points. Though few of them are interesting en...Good points. Though few of them are interesting enough to post about, I see plenty of cases that treat these questions as jurisdictional in nature. Either way, I think the SCC is going to have to sort out the categories in the near future, either by abolishing the correctness categories altogether or by defining them more precisely. My money's on the former, but I think it will be a few years before it happens :)Paul Dalyhttps://www.blogger.com/profile/13433629868698007121noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-5042465675693821032014-03-21T21:52:34.201-04:002014-03-21T21:52:34.201-04:00The Superior Court recently applied the correctnes...The Superior Court recently applied the correctness standard in almost identical circumstances using the Dunsmuir category of "true questions of vires" (Commission scolaire des Affluents c. Commission des relations du travail, 2014 QCCS 684 - http://canlii.ca/t/g56k0). The potential expansion of this category has worried me since Dunsmuir came out and the jurisprudence has done little to comfort me.Finn Makelahttps://www.blogger.com/profile/15797697446236098152noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-86377233429717559472014-03-19T21:02:13.578-04:002014-03-19T21:02:13.578-04:00Yes, I didn't really do a good job explaining ...Yes, I didn't really do a good job explaining Option 2. Your formulation is more what I was trying to get at! Though I suppose there may be a slight variation in which they also address the historical materials (perhaps citing yourself and Michael Plaxton!).<br />Paul Dalyhttps://www.blogger.com/profile/13433629868698007121noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-51767792413943775412014-03-19T17:40:14.718-04:002014-03-19T17:40:14.718-04:00Paul, what about deciding Q2 in the affirmative (...Paul, what about deciding Q2 in the affirmative (within Parl's power and constitutional) and on the basis of the decl provisions' retroactive effect, declining to answer Q1? Carissima Mathenhttp://www.carissimamathen.canoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-20051110039307638082014-03-18T18:04:22.715-04:002014-03-18T18:04:22.715-04:00It seems to me that the "competing specialize...It seems to me that the "competing specialized tribunals" category of Dunsmuir (para. 61) relied upon by the Quebec Court of Appeal hasn't really been put in question or downplayed in recent SCC case law the way other Dunsmuir categories have been (true questions of jurisdiction and question of law of central importance to legal system) have been. (Division-of-powers constitutional issues also appears to remain intact.)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-62613688547161946792014-03-18T14:50:50.580-04:002014-03-18T14:50:50.580-04:00I'm going with 1, because in my mind, they wou...I'm going with 1, because in my mind, they wouldn't answer the constitutional questions here before doing it in the Senate Reference (many of the questions about the exhaustiveness of ss. 41/42, the meaning of "Constitution of Canada" in the amendment provisions, and the interplay of 41, 42, and 44 being the same in both). <br /><br />Then again, who says that they have to decide the Senate Reference first? Still, if they have already worked through all these questions, why not release the Senate reference?<br /><br />Just guessing.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-20836201016308244132014-03-18T00:03:18.303-04:002014-03-18T00:03:18.303-04:00That's a fair point, Ron, though I would wrigg...That's a fair point, Ron, though I would wriggle away from it by saying that it goes to whether deference is appropriate in the first place rather than what form it should take. I've written that one of the relevant factors in determine whether deference is appropriate is the level of autonomy a body enjoys. That idea encompasses your focus on independence, though I accept that it does not make it a critical factor. I would be far happier to see the battle for independence waged at the constitutional level, though courts do not seem to have much stomach for that sort of fight.Paul Dalyhttps://www.blogger.com/profile/13433629868698007121noreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-30488877953617342062014-03-18T00:02:52.140-04:002014-03-18T00:02:52.140-04:00Leaning with 3(a), but will wait to re-watch the f...Leaning with 3(a), but will wait to re-watch the full hearing before giving my final prediction. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7665355359899630254.post-90654382856285648592014-03-17T22:54:33.218-04:002014-03-17T22:54:33.218-04:00Fixed a mistake in the opening para. H/t Fergal Da...Fixed a mistake in the opening para. H/t Fergal Davis!Paul Dalyhttps://www.blogger.com/profile/13433629868698007121noreply@blogger.com