Until recently, parties to a contract did not owe any obligations of good faith towards each other in Canadian common law jurisdictions. There was no obligation of good faith in the negotiation process, none in the performance of contractual obligations, and only limited such obligations in contract termination.[1] There was, for example, no obligation not to lie to your contracting party when performing your contractual duties (unless it constituted the tort of civil fraud). The courts explained the contractual relationship as one in which each party is to get the best deal for themselves, using whatever pressure legitimately at . . . [more]

Over the last three years we have followed Canada’s ongoing battle to protect and reserve it supply management system for dairy and poultry products in place and negotiated for since the original GATT negotiations concluded in 1947. For the most part these trade disputes have been with the United States before NAFTA and Canada-U.S.-Mexico Agreement (CUSMA) Panels.[1] More recently another of Canada’s trade partners joined the fray – New Zealand.[2] The results were mixed and Canada lost some ground but has been able to preserve its right to maintain and operate its system.

On November 24, 2023,a second . . . [more]

In our July 2022 update on the Canada- U.S. Canada-U.S.-Mexico Agreement (CUSMA) dispute over Canada’s supply management system for dairy products,[1] we referred to “new front” in the “dairy wars.“ New Zealand launched a complaint against Canada pursuant to the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP),[i] taking issue with its lack of “promised access” to its otherwise restricted dairy market.[ii]

New Zealand considers the manner in which Canada is implementing its dairy TRQs to be inconsistent with its obligations under CPTPP. …. New Zealand exporters … are not able to fully benefit from the market access that

On May 12, 2023, in response to the Government of Canada’s proposed amendments to the Special Economic Measures Act (SEMA) and the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (Magnitsky Act) in Bill C-47, the Budget Implementation Act 2023, No. 1 (Bill C-47),[1] the International Law Section of the Canadian Bar Association (CBA Section) has filed a submission with the Parliamentary Standing Committee on Finance.[2] Bill C-47 is intended to make consequential amendments with respect to commitments made by the Government in its 2023 Budget. The same text was filed with the . . . [more]

This March, we reviewed the ruling in the Canada United States Mexico Agreement (CUSMA) challenge of Canada’s Dairy Tariff Rate Quotas (TRQs)[1]. The Panel found that Canada’s practice of reserving 85-100% of dairy TRQs for processors violated Article 3.A.2.11(b) of CUSMA. Citing the principle of “judicial economy,”[2] the panel members left it for the two sides to work out a solution without applying the strict guidelines the United States was seeking.

At the time, we queried whether the combination of the lack of a strict roadmap and strong domestic pressures in both countries would lead to further . . . [more]

Early this year, Justice Little of the Federal Court released the much-awaited decision in Ocran v. Canada (Citizenship and Immigration), 2022 FC 175 (CanLII). I am not aware of any study permit judicial review litigation that attracted the attention of Canadian immigration lawyers as much as Ocran. The notoriety of this judicial review litigation was based on the fact that it was a test case that the Department of Immigration, Refugee and Citizenship Canada (IRCC) sought to use to obtain judicial approval for its use of the controversial Chinook software in processing of immigration applications. That approval . . . [more]

Yes, Virginia, there is an administrative law.

But what is it?

…It is now recognized. But it is not quite accepted. It fits no antique mould. Not knowing just what it includes, the legal profession has never felt quite at ease with it nor quite known how to handle it.

Albert Abel, “The Dramatis Personae of Administrative Law”, 1972

“Administrative law is not for sissies — so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture. There will be a quiz afterwards.”

Justice Antonin Scalia, “Judicial Deference to . . . [more]

On January 4, 2022, the Canada United States Mexico Agreement (CUSMA) Panel on Canada’s Dairy Tariff Rate Quotas (TRQs) released its ruling.[1]

The Panel Decides—Both Sides Claim Victory

The Panel ruled that Canada’s practice of reserving 85-100% of dairy TRQs for processors violated Article 3.A.2.11(b) of CUSMA. The United States claimed victory, correctly pointing out that the Panel had accepted the U.S. argument on the central issue. As per USTR Katherine Tai:

This historic win will help eliminate unjustified trade restrictions on American dairy products and will ensure that the U.S. dairy industry and its workers get the full . . . [more]

On December 10, 2021, New Zealand’s Minister of Foreign Affairs and Associate Minister for Māori Development, Nanaia Mahuta, and Minister of Trade and Export Growth, Damien O’Connor, announced the successful conclusion of the Indigenous Peoples Economic and Trade Cooperation Arrangement (IPETCA) and invited other APEC economies to declare their intention to join.[1] Canada’s Minister of International Trade, Export Promotion, Small Business and Economic Development, Mary Ng, announced Canada’s endorsement of IPETCA on the same day.[2]

The IPETCA represents to unique new step for Indigenous participation in the global economy. It is a trade arrangement collaboratively developed by New . . . [more]

“Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan.”

Justice David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency”

“The “Quest”, shall we say, for a unified theory of Administrative Law is a constant yearning or aspiration but such a theory, in my view, is probably unattainable, in large measure because there occurs, all along, these repeated shifts in values, and these cognitive or epistemic shifts, in what we consider just or

The United States has taken the next step in its trade dispute with Canada and asked for the establishment of a panel to examine its complaint regarding Canada’s administration of its tariff-rate quotas (TRQ) allocations for 14 dairy products.[1]

In its request, the United States Trade Representative (USTR) [2] claims that Canada’s allocation of import quotas exclusively to “producers” violates the terms of Canada’s commitments in the schedule to annex 2-B[3] of the Canada-United States-Mexico Agreement (CUSMA). The request was made pursuant to Article 31.6 state-to-state dispute resolution provisions available when a CUSMA party’s rights have been nullified . . . [more]

The state of Michigan has demanded that a Canadian company, Enbridge Energy Company (Enbridge), close the portion permitted by an easement of its oil pipeline—Line 5—that crosses the Straits of Mackinac, which joins Lake Michigan and Lake Huron. Line 5 is an interstate, interprovincial, and international pipeline, owned and operated by Enbridge. It is used to transport petroleum products from Wisconsin, through Michigan, to Ontario, Québec, and further locations in Canada.[1]

Michigan’s Notice of Termination of the easement applies to a 4-mile portion of dual lines along the lake floor and ordered Enbridge to cease operation by May 12, . . . [more]