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.

Some Thoughts on the SCC Decision in Agraira

The Supreme Court of Canada rendered, through the pen of LeBel J., a unanimous judgment in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 last week.

The applicant is a Libyan national. He first sought and was refused refugee status: he claimed that he was a member of the Libyan National Salvation Front. This caused problems for him down the line. When he applied to become a permanent resident of Canada, he was deemed inadmissible because of his involvement in a terrorist organization. In short, he was not involved enough to be a refugee, but too involved to be admissible!

Austerity, Legislative Change and Legitimate Expectations

Back in my native Ireland, the public finances have been severely compressed since the onset of the Great Recession. Unsurprisingly, numerous legal issues have arisen. A recent interesting case is MacDonncha v. Minister for Education and Skills, [2013] IEHC 226.

Out of Time, Out of Luck: The Postal Acceptance Rule and Administrative Law

Canada's immigration system is bursting at the seams. One of the backlogs is in sponsorship applications by Canadian permanent residents and citizens of their parents and grandparents. The federal government's response was to institute, by way of ministerial instructions issued pursuant to s. 87 of the Immigration and Refugee Protection Act, a "temporary pause" in the acceptance of new applications.

In order to avoid a torrent of new applications, the federal government announced its change of policy on November 4, 2011, and made it effective the following day, November 5, 2011.  The Minister responsible explained this decision in the following terms:

… [A]s we redesign the program to make it sustainable, here's the challenge we have: if we leave the program open for applications during that period of consultation and redesign, we know what will happen - we will get absolutely flooded with a huge increase in applications. Because people will say “if the criteria might change, we need to get our application in right away.” And we’re very concerned about this possibility. This has happened before. Immigration consultants and lawyers will go to their clients and say “we're going to send your application in right now.” And then we'll go from 40,000 applications to 50 or 60 or 70,000, and we'll never be able to deal with the backlog.

The applicant in Lukaj v. Canada (Citizenship and Immigration), 2013 FC 8 learned of the change of policy and immediately sent off his application. The application was returned to him, however, with a note that it had been received after the November 5, 2011 deadline.

Duties of Fairness in the Disposal of Municipal Buildings

At first blush, the result in North End Community Health Association v. Halifax (Regional Municipality), 2012 NSSC 330 is striking. A municipality's decision to sell an old school to a property developer was held to be unlawful because it breached a duty of fairness to local non-profit organizations and because it was sold at less than market value.