The State of Judicial Scrutiny of Public Contracting in New Zealand and Canada

This article evaluates the varying ways in which the courts of New Zealand and Canada respond to arguments that government procurement exercises are subject to the principles and remedies of public law. While conceding that context is critical and that there are many, often competing considerations that are relevant in the evaluation of such arguments, the author contends that the courts in both countries should at least on occasion be open to the availability of public law remedies for misfired government procurement exercises, and, more importantly, whether by judicial review or civil action, to the deployment of public law principles in the assessment of the procedural and substantive components of government procurement. More generally, the author warns against the movement in both countries in the direction of the assimilation of public procurement within existing principles and remedies of private tendering law

Tribunals Imitating Courts - Foolish Flattery or Sound Policy?

In his 2004 Horace E Read Memorial Lecture, David Mullan assesses the impact of the due process explosion. To what extent has the evolution of Canadian law (both statutory and common) in the domain of procedural fairness been responsible for the phenomenon of excessive judicialization of the administrative process? Has the increase in the number of decision-makers subject to the obligation of procedural fairness and the growth in the parallels between tribunal and court processes affected adversely the interests of the administrative justice system and the public that it is meant to serve? The author suggests that there is a basis for this concern. He also argues that one potentially profitable way of dealing with it is for tribunals to recognize that they do not always have to function in the same way procedurally for all matters coming before them for resolution. While some tribunals have accepted this and make provision in their rules for variegated procedures depending on context, the author contends that the time may now have come to legislate for this possibility in the manner of the 1981 Model State Administrative Procedure Act