Readers will know that one of the unresolved questions still lingering post-Vavilov is the standard of review applicable to appeals of arbitration awards (see Part III here and also here). This is a subtly difficult question. Prior to Vavilov, the Supreme Court of Canada had held that the judicial review framework applies to arbitration appeals: Sattva Capital […]| Paul Daly
The website and call for papers for the 2026 Public Law Conference, in Cape Town, is now online. The theme is the future of constitutional democracy and there is a non-exhaustive list of illustrative topics: The future of constitutional democracy and the rule of law / the separation of powers The legislature, electoral systems, democratic […]| Paul Daly
Even though guidelines (and other species of ‘soft’ law) are not binding, they can influence the meaning given to legislation. A series of four Supreme Court of Canada decisions make the point: in interpreting a statutory provision, it is necessary to have regard to text, purpose and context; relevant guidelines are part of the interpretive […]| Paul Daly
In most Canadian jurisdictions, an unsuccessful party can appeal a judicial review decision as of right. In a previous post (see here), I discussed whether the appellant bears, or should bear, a ‘tactical burden’ to convince the appellate court that the first-instance judge got something wrong. However, in two Canadian jurisdictions, the ability to seek […]| Paul Daly
Some of you may know that along with Sujit Choudhry I am representing Democracy Watch in its appeal to the Supreme Court of Canada of the decision in Democracy Watch v. Canada (Attorney General), 2024 FCA 158. As is my practice, I do not intend to comment on the case between now and the Supreme […]| Paul Daly
Administrative Law Matters| Paul Daly
Administrative Law Matters| Paul Daly
Administrative Law Matters| Paul Daly
Along with Professors Gerard Kennedy (Alberta) and Mark Mancini (TRU), I am organizing a one-day conference in Edmonton on June 19 to mark the fifth anniversary of the Vavilov decision. My contribution for the conference is “The Scope and Meaning of Reasonableness Review after Vavilov“: This paper, written for the fifth anniversary of the Supreme Court of Canada’s seminal […]| Paul Daly
This is an extract from my recent paper on bias (available here): In this section, I will draw a contrast between an Australian decision and one from Canada, again to support my proposition that the law relating to bias is best understood in terms of temporal and spatial proximity. At the centre of the tale […]| Paul Daly
This is an extract from my recent paper on bias (available here): I will consider three Canadian decisions in this section. They each relate to the prior relationship between a decision-maker and a party to a matter. The issue in Committee for Justice and Liberty v. National Energy Board[1] was the perceived lack of […]| Paul Daly
In my factum for the Telus case (noted here), I discussed two ways in which courts can engage in dynamic statutory interpretation. I represented the Canadian Telecommunications Association. I thought it might be helpful to reproduce the relevant portions of the factum here. Commonwealth courts manage the difficult task of applying statutory provisions to changing […]| Paul Daly
Administrative Law Matters| Paul Daly
I had the unique pleasure of being counsel to the applicant in a judicial review application that was allowed from the Bench: Ontario Association of Chicken Processors v. Ontario Broiler Hatching Egg & Chicken Commission, 2025 ONSC 4174. This was an application in respect of a decision made after a de novo hearing before Ontario’s Agriculture, Food […]| Paul Daly
A question that has garnered relatively little attention in recent years is whether the bias of one member of an adjudicative body taints the entirety of the decision. The Supreme Court of Canada’s authorities point in two directions. On the one hand, in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] […]| Paul Daly
Government policy and the adjudicative independence of regulatory tribunals has long been a source of contention in Canada. A recent judicial contribution offers interesting reflections on the relationship between economic regulators and government policy: Procureur général du Québec c. Duquette, 2025 QCCA 616. In particular, there are thought-provoking comments about the nature of rate-setting and […]| Paul Daly
The use of artificial intelligence in public administration has recently been a source of significant debate. One issue that arises, in the context of judicial review specifically, is whether and to what extent an individual is entitled to know about the use of artificial intelligence in administrative decision-making. The answer given in Mehrara v. Canada […]| Paul Daly
Subsection 63(2) of the Immigration and Refugee Protection Act, SC 2001, c 27, provides: “A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing”. The appellant in Pepa v. Canada […]| Paul Daly
This is an excerpt from my paper, “The Scope and Meaning of Reasonableness Review after Vavilov“ As is well known, the Supreme Court’s guidance on reasonableness review prior to Vavilov was extremely limited, a shortcoming that was emphatically addressed in the majority reasons. The General Structure of Reasonableness Review There are three general points to […]| Paul Daly
In its recent decision in Canadian Coalition for Firearm Rights v. Canada (Attorney General), 2025 FCA 82, the Federal Court of Appeal returned to a theme it has mentioned more than once in recent years. What is the posture that an appellate court should take in relation to a first-instance judgment on a judicial review […]| Paul Daly
Administrative Law Matters| Paul Daly
This is an extract from my recent paper on the law of bias (available here): There is a problem with the common law of bias as applied to administrative decision-makers. Comprised of a set of heavily context-sensitive principles, it is difficult to predict the application of the law of bias in advance. The Privy Council […]| Paul Daly
This morning, the Leaders’ Debates Commission (a body created by an Order in Council to organize leadership debates in advance of federal elections) rescinded its invitation to the Green Party to participate in two debates, this evening and tomorrow. The decision is available here. The reason is that the Green Party initially provided a list […]| Paul Daly
I have posted a new paper on SSRN, entitled “On Time and Space: Proximity in the Law of Bias“. I’ll be posting select extracts over the next while. Here is the abstract: In this piece I address the common law of bias in administrative law and offer a proposal designed to enhance analytical clarity: Lawyers […]| Paul Daly
Brexit provided more grist for the public law mill this morning with the UK Supreme Court’s unanimous decision in R (Miller) v Prime Minister [2019] UKSC 41. In a judgment written by Lady Hale and Lord Reed, the Court held, first, that Prime Minister Johnson’s advice to prorogue Parliament was unlawful and, second, that the […]| Paul Daly
Just a reminder that the last two presentations in this year’s Administrative Law & Governance Colloquium will take place this week and next. On Wednesday, March 19 at 4pm, Professor Rosalind Dixon will be discussing her book Responsive Judicial Review: Democratic dysfunction can arise in both ‘at risk’ and well-functioning constitutional systems. It can threaten […]| Paul Daly
On the other side of the border, President Trump is reshaping federal public administration at breakneck speed, asserting control over so-called independent agencies, firing swathes of civil servants and defunding bodies created by statute. Presidents from both parties have expanded executive power in recent decades but the speed and scale of the current changes are […]| Paul Daly
On Wednesday at 11.30, my next guest in this year’s Administrative Law & Governance Colloquium will be Professor Roberto Gargarella. He will be discussing his book The Law as a Conversation Amongst Equals (Cambridge, 2022): In a time of disenchantment with democracy, massive social protests and the ‘erosion’ of the system of checks and balances, this […]| Paul Daly
Administrative Law Matters| Paul Daly
The next guest in this year’s Administrative Law & Governance Colloquium will be Dr. Paolo Sandro (Leeds) on Wednesday, February 12 at 11.30 (Ottawa time). Dr. Sandro will be discussing his book The Making of Constitutional Democracy: From Creation to Application of Law (Hart, 2022): This open access book addresses a palpable, yet widely neglected, […]| Paul Daly
In previous posts, I mused about the possibility of a challenge to Prime Minister Trudeau’s advice to the Governor General to prorogue Parliament from January 6 to March 24 of this year. There is now a challenge and, moreover, it has been expedited by the Chief Justice of the Federal Court: the hearing will be […]| Paul Daly
Following on from my previous post, here are some notes on cases involving decisions based on or influenced by political expediency… Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 concerned a statute providing that “A committee of investigation shall…be charged with the duty, if the Minister in any case so directs, of […]| Paul Daly
I hope to post in the coming week about the challenge to the recent prorogation of the Canadian Parliament. I am speaking at three separate events in February (at uOttawa, the Runnymede Society’s Law and Freedom conference, and the University of Alberta). For now, I have dug out a few pages of old lecture notes […]| Paul Daly
I am pleased to say the lineup for this year’s Administrative Law & Governance Colloquium has been confirmed. You can register here for the individual sessions and/or join directly from the links below. The theme is “Justifying Judicial Review”: Western constitutional democracies live in turbulent times, buffeted by populism, technological development, globalization and other challenges. […]| Paul Daly
Following from my previous post and based on Prime Minister’s Trudeau remarks this morning, I would think the prospects for any successful challenge are low. The Prime Minister announced this morning that he would be resigning both as leader of the Liberal Party of Canada and from office as soon as a successor is selected […]| Paul Daly
Any foray by the Supreme Court into an area of controversy will invariably leave some questions unanswered. That is the case with Auer as well. Building on my previous note on the decision (see here), three jump out at me. First, the requirements of the presumption of validity are unclear. There is a plausible case […]| Paul Daly
Today marks the fifth anniversary of the Supreme Court of Canada’s landmark decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653. 2019 is really a world away. On the afternoon of the release of the decision, I held a dial-in session where I delivered my thoughts into […]| Paul Daly
The Federal Court of Appeal recently released an interesting decision at the intersection of constitutional and administrative law in Galderma Canada Inc. v. Canada (Attorney General), 2024 FCA 208 (I was co-counsel for the appellant). The case involved a judicial review of a decision of the Patented Medicines Prices Review Board purporting to regulate an […]| Paul Daly
I have a new paper, “Artificial Intelligence and Administrative Tribunals“, prepared for a forthcoming volume edited by Matthew Groves and Yee-Fui Ng. Here is the abstract of a fairly optimistic paper: In this paper, I will examine the implications of artificial intelligence for administrative tribunals. I will briefly set the scene in Part I by describing […]| Paul Daly
The Supreme Court of Canada handed down its much-anticipated decision on standard of review of regulations in Auer v. Auer, 2024 SCC 36 this morning. I was co-counsel for the appellant, Roland Auer. After the hearing back in April, two things seemed quite clear to me: the Supreme Court would apply the Vavilov framework to […]| Paul Daly
I am giving a couple of ‘year in review’ talks in the coming weeks, to the CLEBC Administrative Law Conference in Vancouver on November 21, and the Canadian Bar Association’s Administrative Law, and Labour and Employment Law Conference in Ottawa on November 29. I’ve posted the CLEBC version of the paper to SSRN, “Correctness, Reasonableness […]| Paul Daly
There is an end-of-days feeling around Ottawa at the moment. Prime Minister Justin Trudeau, it seems, is not long for this (political world). He leads a minority administration and, though he has governed in that way since the last election, the opposition parties now say they will vote no confidence at the first available opportunity. […]| Paul Daly