Interim Orders and Legitimate Expectations in Judicial Review in Canada

The power of courts to order interim remedies in judicial review proceedings was squarely in issue in Amalorpavanathan v. Ontario (Health and Long-Term Care), 2013 ONSC 4993. The subsequent decision on the merits (given orally: 2013 ONSC 5415) involved an interesting application of the doctrine of legitimate expectations.

Reviewing Regulations

The Supreme Court of Canada heard argument last Monday in an important case on reviewing delegated legislation: Shopper's Drug Mart v. Minister for Health. The pharmacies lost in the Ontario Court of Appeal: 2011 ONCA 830; though Epstein J.A. delivered a convincing dissent. Up for discussion at the Supreme Court of Canada was the vires of the regulations and, in particular, whether they sought to use a power to regulate to prohibit commercial activities.

Henry VIII Down Under

There are limits to what courts can do to thwart legislative enactments of Henry VIII clauses, which grant powers to the executive to modify legislation. Typically, Henry VIII clauses are included in legislation for limited periods of time, to facilitate the implementation of the statutory provisions.

Much of what governs modern life is not produced by legislators in the form of laws, but by the executive branch in the form of regulations, statutory instruments (and much more besides). Some oversight is exercised by the legislative branch, but the deluge of delegated legislation is such as to overwhelm the parliamentary committees responsible for monitoring it. Henry VIII clauses are especially problematic, because they can be used by the executive to defeat the intention of the legislature. Their purposes may be innocuous, but their use might not always be.

Of prerogatives, rules and guidance

The UK Supreme Court decided two very interesting immigration cases the week before last, touching on two very interesting issues.