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Archive for the ‘Administrative Law’ Columns

WTO National Security Exception – Strike Two!

Authors’ note: U.S. trade policy may well be affected by the results of the November 3rd election, which this column was written prior to. 

In February 2020,[1] we took note of the first adopted WTO dispute settlement panel to interpret the GATT 1994 Article XXI national security exception: Russia – Traffic in Transit.[2] Now in Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (“Saudi – IP”),[3] we have a second panel that deals with the defence.

Addressing a complaint by Qatar, the Panel found that it had established a prima facie case that the Kingdom . . . [more]

Posted in: Administrative Law

And Now for Something Completely Different…

Last December was a rare instance where the average Canadians’ attention was briefly captured by a matter of administrative law, thanks to Russian spies and Super Bowl ads. Two months earlier, Britons’ attention was also captured by a matter of administrative law, involving a challenge to the prorogation of parliament by the Queen at the request of Prime Minister Boris Johnson. In that case, R (on the application of Miller) v The Prime Minister, [2019] UKSC 41, on judicial review the UK Supreme Court held that the prorogation had been unlawful.

The loss was significant for the ruling Conservatives. . . . [more]

Posted in: Administrative Law

Two 800-Pound Gorillas?

Q: Where does an 800-pound gorilla sleep?

A: Anywhere it wants to.

I was recently interviewed by the South China Morning Post [SCMP] with respect to Premier of China Li Keqiang’s comment this May about China and the Comprehensive and Progressive Trans-Pacific Partnership [CPTPP]. A short article written with a quick turn-around time for publication does not allow those interviewed to provide an in-depth response. It is a good piece and gives an accurate snapshot of my “at this moment” view that now is not the time for China’s entry into the CPTPP.

But of course, that was . . . [more]

Posted in: Administrative Law

The ATA in the Age of Vavilov

Eight months and a pandemic ago, the Supreme Court of Canada released the Vavilov trilogy (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65). While Vavilov may have introduced a significant change in how the standard of revie is determined, it confirmed that there remain only two standards: correctness and reasonableness. However, in British Columbia, the third standard of reasonableness simpliciter remains fossilized through the provisions of the Administrative Tribunals Act, SBC 2004, c. 45 (“ATA”). What interests me at this point is how the BC courts have applied Vavilov, given the . . . [more]

Posted in: Administrative Law

The Global COVID-19 Challenge: Health and Economic Risk Curves

Administrator’s note: The ever-evolving COVID-19 pandemic has posed a challenge to long-term content planning here at Slaw. Please note that this column was written in late April 2020.

The COVID-19 pandemic is a “game changer.” Health and family have always been the priority for me, and that has always been my message to those working with me and my clients. To each and every Slaw contributor & follower: in these turbulent times, I hope you and your family are staying safe.

Governments across the globe are mandating social distancing and related business shutdowns in an effort the “flatten the curve” . . . [more]

Posted in: Administrative Law

Isn’t That Special – What Should That Resolution Say?

As you read this, you are invariably working from home and avoiding social situations or public gatherings due to the current COVID-19 pandemic, so it might seem strange to be considering the law applicable to arcane procedural matters applicable to an annual general meeting (“AGM”) for various types of organizations. In fact, many AGMs have been postponed for the foreseeable future. Even worse, some might still be proceeding by way of online conferencing methods many had not even heard of several months ago. As well, the topic under consideration might be on the outer perimeter of what falls within the . . . [more]

Posted in: Administrative Law

If the Groundhog Sees Its Shadow… Will There Be Six More Years of Discussion of Standard of Review?

I have never cared for American football and have never watched a Super Bowl. My only interest is in the commercials produced for the American broadcast, which for the last many years I simply watch on line the day after the game. So for me, the matter that gave rise to the decision in dispute in Bell Canada v. Canada (Attorney General), 2019 SCC 66 (“Bell”) is not really important to me.

One of the best commercials that aired during Super Bowl LIV involved Bill Murray reprising his role as weatherman Phil Connors from the film Groundhog . . . [more]

Posted in: Administrative Law

WTO Panel Sets Threshold Test for the National Security Exception

In April 2015, we posted the first of a pair of articles on the “national security exception”: an important and controversial part of WTO agreements and other trade agreements including NAFTA and the new CUSMA. In these articles, we explored whether it was a necessary “safety valve” or the “ultimate threat” to the rule of law in the context of international trade.

The issue was put in an urgent perspective in March 2018 when the U.S. Administration announced section 232 tariffs on steel and aluminium—measures justified on the basis of national security. See our “Pandora’s Box” series (Pt 1 . . . [more]

Posted in: Administrative Law

A Step Towards the New NAFTA: Part II

On May 17, 2019, Canada and the United States agreed to remove reciprocal trade restrictions on steel and aluminum – the U.S. “national security” tariffs and Canada’s countermeasures. In Canada, the removal of the U.S. Section 232 tariffs without the maintenance of residual quotas or export restrictions (the initial U.S. condition) was considered an important “win.” While Canada did succeed in this regard, it did agree to “snap back” provisions; the tariffs can be re-introduced on a product-by-product basis in the event of a “surge” of imports of steel and aluminum beyond historic levels due to imports from third countries. . . . [more]

Posted in: Administrative Law

A Step Towards the New NAFTA, Part 1: End Game or a Cease Fire?

On May 17, 2019, Canada and the United States announced the settlement of the cross-border steel and aluminum trade conflict. Both countries agreed to eliminate tariffs on their cross-border trade in steel and aluminum products. Mexico and the United States also settled the issue in the same way–with the reciprocal elimination of the tariffs.

We recall that in spite of the then-ongoing NAFTA re-negotiations, the Trump Administration imposed tariffs on steel and aluminum imports of 25% and 10%, respectively, from Canada in June 2018. This action was pursuant to section 232 of the Trade Expansion Act of 1962 on the . . . [more]

Posted in: Administrative Law

On Second Thought… an Administrative Tribunal’s Common Law Ability to Reconsider Its Decisions

An acquaintance of mine recently accused me of being an “expert” on administrative law now that I have been regularly writing on the topic. His choice of words, not mine. Correct or not, I took it as a complement. Then, based upon his misguided belief, he put an interesting question to me, which provided with some inspiration for this article.

The question related to an unspecified administrative tribunal with no statutory appeal provision and no statutory reconsideration provision. Apparently, the tribunal discovered that it had made a demonstrable and embarrassing denial of natural justice, failing to invite submissions on a . . . [more]

Posted in: Administrative Law

The Ombudsman: A Little Bit Country (Sweden) and a Little Bit Rock and Roll (Or Not)

When most lawyers think of administrative law, we think of administrative decision makers and tribunals, or the judicial review process. However, there is an adjunct to the administrative law process that is not technically an administrative tribunal or traditional decision-making body, yet which shares many of the concerns of administrative law. This is the Ombudsman, an administrative agency that may seem obscure to or misunderstood by some.

The Ombudsman is often a place of last resort for citizens who have exhausted all decision making remedies or for whom there is no administrative or legal process that can address their concerns . . . [more]

Posted in: Administrative Law