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Archive for the ‘Administrative Law’ Columns

Canada-EU – Old Ties, New Trade Partners

For Canadian business, the threat of U.S. withdrawal from NAFTA is the biggest and most immediate challenge. Without progress that satisfies the U.S. Administration, the current NAFTA negotiations may end with the U.S. issuing a Notice of Withdrawal that starts the six month clock on formal U.S. withdrawal from the Agreement and the market uncertainty that will likely follow.

Canada can and will survive the U.S. withdrawal from NAFTA. Canada and the U.S. have deep economic ties and market integration that will result in trade between the countries continuing, but on different terms. To address the problem of dependence on . . . [more]

Posted in: Administrative Law

Presenting the Bills: Who Calls the Tune?

Who gets to participate in making the rules that affect them, and to what degree? This is a fundamental question in Canada (Governor General in Council) v. Mikisew Cree First Nation, 2016 FCA 311 (“MCFN”), an appeal of a judicial review proceeding. In MCFN, the core question is whether indigenous groups in Canada entitled to a role in drafting legislation that affects their treaty rights.

This case is unique in Canadian jurisprudence. Until now, cases regarding the duty to consult have been about the obligation to consult indigenous peoples in the course of making a regulatory decision. MCFN is . . . [more]

Posted in: Administrative Law

Regulation, Statutory Interpretation, and Questionable Libation

Generally speaking, products we ingest like food, beverages, drugs and nutritional supplements are subject to basic regulations so we as consumers know what we are putting into our bodies. Things like ingredients, quantity, and source come to mind as basic information that should be available on packaging, or otherwise be readily discernable when interacting with these regulated products. Unfortunately, and to the detriment of consumers and producers alike, the legislation and administrative regimes in Canada that strive to ensure that food and beverage labeling and classification is intuitive and transparent remain works in progress. Shifting consumer demands and habits, developments . . . [more]

Posted in: Administrative Law

Regulatory Offences: The Duty to Cooperate, and the Right to Silence

In highly regulated fields and industries, participants are often under a statutory obligation to cooperate with the auditors, inspectors and peace officers who investigate contraventions of the applicable regulatory regime, typically comprised of an Act, Regulations and sometimes the terms of a licence. This coerced cooperation comes in many forms: from retaining and turning over records and documents, to permitting access for physical inspection, to answering probing questions. More often than not inspections occur without warning, and happen quickly before the individual or entity subject to inspection is fully able to take stock of the situation. While this element . . . [more]

Posted in: Administrative Law

Stand by Me – if You Have Standing

As the old song goes, we all need somebody to lean on. However, we can’t always have somebody to stand with – or against – us. In administrative law matters, there are two aspects of standing. One is the ability of a decision making body to participate in or commence judicial review proceedings. The other, which is the focus of this article, is the ability of individuals or corporation to appear before a tribunal or in judicial review proceedings.

One of the fundamental tenets of natural justice and procedural fairness is the right to a hearing, whatever form that might . . . [more]

Posted in: Administrative Law

Food & Beverage Law: An Emerging Species of the Admin Law Genus

Administrative law as a practice area sometimes gets a bad rap for being comprised of Byzantine rules of procedure (often completely unique to the specific tribunal in question), frustrating decision makers, and shifting standards of review. The name itself “admin law” is also guilty of being a little boring, and is not nearly as descriptive as other practice areas like “criminal law” or “immigration law”. To the uninitiated, administrative law is a practice area that can come across as broad, dry, and overly technical. For those that feel that way, the profession has done you a disservice.

In practice, admin . . . [more]

Posted in: Administrative Law

Two Tales From Alberta

1. Be careful what you ask for…

“Maybe it’s opposite day! Maybe all these X’s mean that my answers are correct! Maybe your “A” is really an “F”! That must be it! I win the bet!”

– Calvin, Calvin & Hobbes

To me, the suggestion that the topic of the Standard of Review is the great Canadian passion, at least for practitioners of administrative law, is firmly tongue in cheek. While I have acknowledged that the standard of review is at the heart of judicial review, there is so much more to administrative law. I would suggest that . . . [more]

Posted in: Administrative Law

Dispute Resolution of the Future: 24 Hour Access, No Set Dress Code

Forget the business attire, forget the hearing room, and forget regular business hours. The future may even be dispute resolution in your pyjamas. Necessity being the mother of invention, an increasing need for better access to justice and the means for delivering it means that your home computer, laptop, or mobile device can serve as the place where disputes are resolved.

In Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854 at para. 10, Lamer CJ noted that the rise of the administrative state has been marked by the creation of institutions other than the courts. While Lamer . . . [more]

Posted in: Administrative Law, Dispute Resolution

Calling a Spade a Spade – It’s Probably a Shovel: Standards of Proof in Administrative Proceedings

One of the predominant topics in any discussion about administrative law is standard of review. The standard of review is at the heart of judicial review proceedings. What I find much more interesting is standard of proof. The vast majority of administrative law decisions never go to judicial review, or even to an administrative appeal tribunal. The decision at first instance is often the final decision. From that perspective, the standard of proof is a far more important concept.

Statutory Standards of Proof

For administrative tribunals, the default is the civil standard of proof on the balance of probabilities, subject . . . [more]

Posted in: Administrative Law