Prof. Kent Roach - "Surveillance and Canada’s lagging law"

Thursday, February 6, 2014

In a commentary in the Ottawa Citizen, Prof. Kent Roach argues that current oversight of the Communications Security Establishment Canada agency is inadequate ("Surveillance and Canada’s lagging law," February 6, 2014).

Read the commentary on the Ottawa Citizen website, or below.

Surveillance and Canada’s lagging law

By Kent Roach

ITLP NCA Review Program (NCAR): Canadian Administrative Law

Each NCAR course is designed to support students by providing an intensive NCA examination prep program. NCAR courses are intended to provide a guided overview of the NCA subject syllabus, not to teach the entire NCA syllabus. To obtain the greatest benefit from NCAR courses, students should read and be familiar with the NCA syllabus and course materials. NCAR is designed as a tool to help you in your exam preparation but it does not replace individual preparation or study. To attend the NCAR program, all students must be fluent in English.

Is Administrative Law Only for Losers? Lessons from Gomery

Lorne Sossin
Friday, April 7, 2006

Administrative Law (and the same might be said of Constitutional Law) is for losers. People who receive decisions from government that they like do not challenge them in Court. Principles of fairness and reasonableness are developed in the context of procedural fairness to losers in public decision-making - the student expelled from school, the professional denied a license to practice, the company fined for regulatory infractions, the vanquished in a labour dispute. This is, in some respects, as it ought to be. Persuading losers that an adverse decision was fair and reasonable is one of the central characteristics of the rule of law. But seen from another perspective, that of the integrity of public decision-making, whether a decision is positive or negative for a particular party is beside the point.

For example, since Roncarelli v. Duplessis, the rule of law in Canada has come to mean protection from arbitrary public decisions and public decisions based on ulterior and improper motives and public decisions made in bad faith. Such decisions might as easily be positive determinations grounded in corruption and favourtism as negative determinations which are punitive or discriminatory. Is the decision to grant a license based on the political stripe of an applicant any less offensive than the decision to deny a license on the same basis? 

How the Supreme Court of Canada Missed the Point about Human Rights Jurisdiction…

Lorne Sossin
Tuesday, February 27, 2007

Administrative law is often obscure but the Supreme Court over the past year or two has been embroiled in a particularly technical administrative law question around which tribunals have jurisdiction over which kinds of disputes and whether more than one tribunal may have jurisdiction over the same dispute. Like many technical questions in administrative law, however, there is a basic question of fairness and justice underlying the debate. The stakes for Canadians who encounter the justice system (and far more of this group do so before administrative tribunals than before courts), could not be higher.

While there have been five or six decisions since 2005 on the issue of exclusive and concurrent jurisdiction in administrative tribunals, the one which illustrates the underlying issues best is Tranchemontagne v. Ontario (Director, Disability Support Program) [2006] S.C.J. No. 14.

Veils, Isotopes and the Meaning of “Independence”

Lorne Sossin
Sunday, January 13, 2008

There have been a considerable number of allegations of late that the Federal Government has been improperly interfering with independent Federal Agencies, Board and Commissions (or, for short, Federal ABCs). From a dispute about veiled women voting to a dispute about shutting down a nuclear facility, both the diversity and the importance of independent administrative ABCs has been on display. But just how independent are they? When we refer to a body as at “arm’s length” from the Government, does that imply it still may be within the Government’s grasp. Below I suggest these administrative bodies may not be as independent as we think they are, but that their vulnerability to government interference is precisely what is intensifying public scrutiny of government and enhancing public support for administrative justice.

In September, Prime Minister Harper said he “profoundly disagreed” with the decision of  Elections Canada not to require veiled women to submit to visual identification before being able to vote in federal elections. Harper added:

Dunsmuir: Can the Standard of Review be Solved?

Lorne Sossin
Tuesday, March 18, 2008

On Friday, March 7, 2008, the Supreme Court released Dunsmuir v. New Brunswick (2008 SCC 9), a stark reversal of the last decade of administrative law jurisprudence on the issue of the standard of review. This decision seeks to quiet the steady drumbeat of criticism of the Court's Standard of Review jurisprudence while remaining true to the culture of deference. The centrepiece of the judgment is the collapsing of the standard of patent unreasonableness and the standard of reasonableness simpliciter into a single standard of reasonableness. While this move responds to the concern over arcane and artificial distinctions between shades of unreasonableness, it is unlikely to solve the standard of review dilemma, for the reasons explored below [note, a version of this comment was posted under the title "Dunsmuir: Plus ça change" with TheCourt.ca]

Bastarache and Lebel JJ., begin their majority reasons in Dunsmuir by throwing down the following gauntlet:

Report on "The Future of Administrative Justice" Symposium

Thursday, May 8, 2008

A symposium on "The Future of Administrative Justice" was hosted by the Faculty of Law in January 2008. It explored the future of administrative justice by bringing together academics, participants in the tribunal sector and government policy makers to dialogue about improvements to administrative tribunals in Ontario and other jurisdictions.

A 28-page report on the symposium has now been released (May 2008), which summarizes the presentations and the roundtable discussion that wrapped up the day.

The keynote address was given by Lord Justice Robert Carnwath, Senior President of Tribunals, England and Wales. Read the keynote address (PDF).

The symposium was also recorded on video, and the each session of the symposium can be viewed online from the symposium web page. The web page also includes other useful papers and background material.

Discussion of Dunsmuir v. New Brunswick

Friday, June 13, 2008

On June 4, 2008, a Roundtable was held at the Faculty of Law, University of Toronto on the Dunsmuir v. New Brunswick decision from the Supreme Court of Canada (handed down in March of 2008).  The aim of the Roundtable was to explore the implications of this decision for the development of Administrative Law, and in particular the Court's wide-ranging discussion of the standard of judicial review of administrative action, deference, and the applicability of procedural fairness to public office holders.

The background material for the Roundtable, including the Dunsmuir case, the facta filed at the Supreme Court, and some early commentaries are available for download at: http://www.law.utoronto.ca/conferences/dunsmuir.html.

Below, we have prepared a summary (in PDF format) of the themes, ideas and arguments raised during the Roundtable in the hopes that it will serve as a catalyst for further discussion and debate.  We invite comments on any aspect of the discussion which might interest readers of this blog.

 

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