Justice Wilson’s Administrative Law Legacy: The National Corn Growers Decision and Judicial Review of Administrative Decision-Making

Justice Wilson’s concurring reasons for judgment in the Supreme Court of Canada’s decision in National Corn Growers Assn. v. Canada (Import Tribunal) represent the most elaborate expression of her thinking about the rationales for judicial deference to the decisions of administrative tribunals and the methodology courts should employ in approaching judicial review of the decisions of administrative tribunals. A great deal of development has taken place in Canadian thinking about judicial review since that decision was released on November 8, 1990, but Justice Wilson’s articulation of the reasons courts should defer to the interpretation given by tribunals to their enabling legislation continues to influence contemporary judicial review jurisprudence, as does her criticism of excessive segmentation of tribunal decisions during the course of judicial review. On the other hand, it was evident to commentators in the wake of the National Corn Growers decision that Justice Wilson’s reasons were deficient as a unifying the ory of substantive judicial review of administrative decision-making. This paper seeks to evaluate Justice Wilson’s reasoning in the National Corn Growers case in light of subsequent judicial attempts to develop a more comprehensive approach to common law judicial review of substantive administrative decision-making in Canada. The author concludes that Justice Wilson’s approach to judicial review managed to avoid certain pitfalls that were to plague later attempts to develop a unified the ory of substantive judicial review. Nevertheless, in the author’s view her reasons share with more recent jurisprudence the weakness that insufficient attention is paid to the considerations that justify judicial intervention notwithstanding a more general posture of deference to tribunal decision-making

The Democratic Intellect: The State in the Work of Madame Justice Wilson

It is a great honour to have been asked to provide an essay for this volume of reflections on the contribution Madame Justice Bertha Wilson has made to the development of law in Canada. To a certain extent, this is a matter of pride in finding my own name associated with that of the very learned and respected individuals who have set out their thoughts in this collection of articles. In the main, however, the honour comes from the opportunity to make a public statement of my own respect and admiration for Madame Justice Wilson and the significant role that she has played in our law and in our society

The Democratic Intellect: The State in the Work of Madame Justice Wilson

It is a great honour to have been asked to provide an essay for this volume of reflections on the contribution Madame Justice Bertha Wilson has made to the development of law in Canada. To a certain extent, this is a matter of pride in finding my own name associated with that of the very learned and respected individuals who have set out their thoughts in this collection of articles. In the main, however, the honour comes from the opportunity to make a public statement of my own respect and admiration for Madame Justice Wilson and the significant role that she has played in our law and in our society

The Democratic Intellect: The State in the Work of Madame Justice Wilson

It is a great honour to have been asked to provide an essay for this volume of reflections on the contribution Madame Justice Bertha Wilson has made to the development of law in Canada. To a certain extent, this is a matter of pride in finding my own name associated with that of the very learned and respected individuals who have set out their thoughts in this collection of articles. In the main, however, the honour comes from the opportunity to make a public statement of my own respect and admiration for Madame Justice Wilson and the significant role that she has played in our law and in our society

The Democratic Intellect: The State in the Work of Madame Justice Wilson

It is a great honour to have been asked to provide an essay for this volume of reflections on the contribution Madame Justice Bertha Wilson has made to the development of law in Canada. To a certain extent, this is a matter of pride in finding my own name associated with that of the very learned and respected individuals who have set out their thoughts in this collection of articles. In the main, however, the honour comes from the opportunity to make a public statement of my own respect and admiration for Madame Justice Wilson and the significant role that she has played in our law and in our society

From Principles to Rules: The Case for Statutory Rules Governing Aspects of Judicial Disqualification

The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact- and context-specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for a judge to sit in a marginal case. This article explores statutory judicial disqualification regimes in the United States, Germany, and Quebec to gain insights into how statutory rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise to judicial disqualification. Using these insights, the authors then propose the use of statutory rules to address problem areas with respect to professional relationships with former colleagues and clients, prior judicial involvement with litigants, extrajudicial writings, and procedures for making determinations concerning judicial disqualification

Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification

Despite a considerable amount of litigation concerning judicial impartiality, the Canadian reasonable apprehension of bias test for judicial disqualification has remained fundamentally unaltered and is well accepted in the jurisprudence. Unfortunately, the application of the test continues to generate difficulties for judges who need to use it to make decisions in marginal cases. Based on previously published doctrinal and empirical research, the goal in the present contribution is to suggest modifications to the test that will better explain the existing jurisprudence and make it easier for judges to understand when recusal is or is not necessary in marginal cases. The authors consider first the advantages of the existing test and suggest that in order to be useful, any refinement to the test must, to the greatest extent possible, preserve those advantages. Second, the authors explain why inconsistent application of the test in marginal cases is a concern. Third, they analyze the ways in which the existing test, and the jurisprudence explaining and applying it, are problematic. Fourth, the authors propose a modification to the reasonable apprehension of bias test that is designed to address these shortcomings while preserving the key advantages of the existing test

The Exozodiacal Dust Problem for Direct Observations of ExoEarths

Debris dust in the habitable zones of stars - otherwise known as exozodiacal dust - comes from extrasolar asteroids and comets and is thus an expected part of a planetary system. Background flux from the Solar System's zodiacal dust and the exozodiacal dust in the target system is likely to be the largest source of astrophysical noise in direct observations of terrestrial planets in the habitable zones of nearby stars. Furthermore, dust structures like clumps, thought to be produced by dynamical interactions with exoplanets, are a possible source of confusion. In this paper, we qualitatively assess the primary impact of exozodical dust on high-contrast direct imaging at optical wavelengths, such as would be performed with a coronagraph. Then we present the sensitivity of previous, current, and near-term facilities to thermal emission from debris dust at all distances from nearby solar-type stars, as well as our current knowledge of dust levels from recent surveys. Finally, we address the other method of detecting debris dust, through high-contrast imaging in scattered light. This method is currently far less sensitive than thermal emission observations, but provides high spatial resolution for studying dust structures. This paper represents the first report of NASA's Exoplanet Exploration Program Analysis Group (ExoPAG).Comment: 21 pages, 5 figures, 2 tables. Accepted for publication in PASP 2012-06-0

Target Selection for the LBTI Exozodi Key Science Program

The Hunt for Observable Signatures of Terrestrial planetary Systems (HOSTS) on the Large Binocular Telescope Interferometer will survey nearby stars for faint emission arising from ~300 K dust (exozodiacal dust), and aims to determine the exozodiacal dust luminosity function. HOSTS results will enable planning for future space telescopes aimed at direct spectroscopy of habitable zone terrestrial planets, as well as greater understanding of the evolution of exozodiacal disks and planetary systems. We lay out here the considerations that lead to the final HOSTS target list. Our target selection strategy maximizes the ability of the survey to constrain the exozodi luminosity function by selecting a combination of stars selected for suitability as targets of future missions and as sensitive exozodi probes. With a survey of approximately 50 stars, we show that HOSTS can enable an understanding of the statistical distribution of warm dust around various types of stars and is robust to the effects of varying levels of survey sensitivity induced by weather conditions.Comment: accepted to ApJ