The Unfinished Project of Roncarelli v. Duplessis: Justiciability, Discretion and the Limits of the Rule of Law

Roncarelli is remembered fifty years later particularly because of Justice Rand\u27s now iconic statement that there is no such thing as absolute and untrammelled discretion. Justice Rand defined untrammelled discretion as circumstances where action can be taken on any ground or for any reason that can be suggested to the mind of the decision maker. This statement has been understood to mean that all public regulation exercised through discretionary decision-making by executive officials has legal boundaries, and that the role of the courts is to ensure that decisions do not exceed those boundaries.In this paper, the author explores several areas of public regulation in Canada that remain untrammelled . These areas include realms of government action deemed to be nonjusticiable, such as decisions involving foreign relations or the conferral of honours. The author argues that areas of untrammelled discretion are inconsistent with the Supreme Court of Canada\u27s reasoning in Roncarelli. To complete the unfinished project of Roncarelli, the author argues that all discretionary decisions should be understood to have justiciable elements, which include, at a minimum, a requirement that public power be exercised in good faith. The author concludes by highlighting that while approaching all discretionary authority as justiciable is intended to alter the approach of Canadian public law, Roncarelli\u27s project is as much a political project as a legal one

Administrative Justice in an Interconnected World

‘Administrative Justice in an Interconnected World’ is a compelling and elusive topic. It is my goal to discuss the extent to which administrative justice is in fact in an interconnected world or what it would take for this claim to become a reality. The claim that administrative justice is interconnected in this way is the compelling part – in other words, that the many disparate statutory tribunals, boards, agencies, commissions, etc., across the common law world, which exist in a decision-making sphere apart from both courts and government departments, and operate within different legal, political and policy cultures, share enough common ground to constitute a distinct system of justice. The reality is the elusive part – while there are hints at how such interconnected developments might proceed, there are also wholly parallel discussions where administrative law appears to be developing in splendid isolation in each jurisdiction, where legal and policy problems are approached as if no one else had ever considered them, and where occasionally different countries with similar values arrive at disparate responses to the same dilemmas

Constitutional Cases 2017: An Overview

This contribution reviews the Constitutional Cases issued by the Supreme Court in 2017. The analysis is divided into two parts. In the first part, I analyze the year as a whole, identifying noteworthy trends. In the second part, I explore some specific constitutional decisions of the Court — especially those concerning issues which in my view have important implications for the future of the Court and its constitutional jurisprudence

2011-2016 Strategic Plan: Experience Osgoode

This strategic plan calls for (1) increased emphasis on experiential education and the exploration of law in action; (2) intensification of research that shapes the public debate; and (3) greater community engagement.https://digitalcommons.osgoode.yorku.ca/strategic_plans/1002/thumbnail.jp

Reflections on the U.K. Tribunal Reform: A Canadian Perspective

I have been following the United Kingdom reforms with interest, and in particular, the journey Lord Justice Carnwath has been pursuing with the Tribunal community in the United Kingdom (UK). The establishment of a unified Tribunals system arose out of a desire to bring tribunals more expressly under the umbrella of the justice system in order to better serve parties coming before those tribunals. The rationales for the UK reform were set out in a 2001 review conducted by Sir Andrew Leggett -- “Tribunals for Users -- One system One Service.”I would like to offer a Canadian perspective on the UK tribunal reform, and to do so in light of new legislation in Ontario, Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009. Until this legislation, and analogous legislative initiatives in Alberta in 2008 and in B.C. in 2004, Canadian administrative tribunals existed largely in isolation from one another. Each was created pursuant to a legislative mandate, housed within a different ministry, and subject to disparate approaches to staffing, budgeting and administration. Some have Chairs who were also CEOs while others had separate Chairs and CEO. Some have full-time members, others part-time members, and some both. The subject matter of these tribunals could not be more disparate -- as LeBel J. famously remarked in Blencoe v. 18 British Columbia (Human Rights Commission)

Law School as Social Innovation

Legal education is in the midst of a range of challenges and disruptions. This address outlines these dynamics, and explores the potential of social innovation as a model for law schools which both responds to current challenges and enhances resilience in the face of disruption. By reframing legal education as facing outward, and advancing its public interest mandate through partnerships, collaboration and academic initiatives designed to solve social problems, law schools can enhance the student learning experience, generate new forms of legal knowledge and thrive at a time of rapid change. Address delivered at the Australian Law Teachers Association (ALTA) 2016 Conference in Wellington on 8 July 2016

The Duty to Consult and Accommodate: Procedural Justice as Aboriginal Rights

This article explores the development and application of the “duty to consult and accommodate” from an administrative law perspective and more broadly con- siders the promise and limitations of procedural justice through the context of ab- original rights. The question addressed in this article is the relationship between procedural justice and substantive outcomes in the context of aboriginal rights in Canada. More specifically, by developing a “duty to consult and accommodate” on the part of the Crown with aboriginal communities who have asserted but not yet proven land claims, has the Court advanced the potential for reconciliation, or provided a roadmap for Government to avoid the underlying issue of the rights of aboriginal peoples? The article considers to what extent the duty relies on administrative law concepts such as the duty of fairness and the standard of review of reasonableness and whether this is appropriate. This analysis is divided into three sections. The first section explores the idea of procedural justice within the context of the judicial role in dispute resolution. The second section examines the duty to consult and accommodate. The third and concluding section considers the implications of procedural justice for reconciliation between the state and aboriginal communities. The article concludes that while procedural justice holds considerable promise as a purpose, reconciliatory procedural mechanism, its limitations increase as time passes without significant procedural enhancements such as the Crown’s “duty to consult and accommodate” ab- original communities leading to more just outcomes

Salvaging the Welfare State?: The Prospects for Judicial Review of the Canada Health and Social Transfer

The Canadian Health and Social Transfer ( CHST ), which came into force on April 1, 1996, contains no national standards relating to the quality of social welfare. The goal of this new transfer was to promote provincial flexibility in the sphere of social policy. The author argues that this flexibility may undermine the core of the Canadian welfare state. Given the preoccupation of the provincial and federal governments with devolution, welfare recipients must turn to the judiciary to determine the bottom line of the welfare state. The author explores the various constitutional and administrative law grounds on which the federal government\u27s spending power under the CHST could be constrained. He concludes that while judicial review may serve as a useful catalyst for reexamining the normative foundation of the Canadian welfare state (as it arguably has in the U.S. context), current administrative and constitutional jurisprudence make a successful challenge of the CHST unlikely