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Archive for the ‘Administrative Law’ Columns

Canadian Securities Administrators (CSA) Propose Amendments to National Instrument 52-112 Non-GAAP Disclosure: Lessons for Governance and Legal Practitioners

These changes are intended to update existing Canadian Non-GAAP (Generally Accepted Accounting Principles) disclosure standards to conform to the new international accounting standard, IFRS 18 Presentation and Disclosure in Financial Statements, which is effective for annual periods beginning on or after January 1, 2027.

Background and Context

IFRS 18 Impact: The IFRS 18 standard requires the disclosure of Management-Defined Performance Measures in a note to the financial statements, which would have removed them from the scope of the existing NI 52-112 definition of non-GAAP measures.

Purpose: To continue providing investor protection and transparency, both in the financial statements and beyond . . . [more]

Posted in: Administrative Law

Poor Decision-Making and Backlogs in the Administrative Justice System

There is no “one” solution to the delays in administrative justice in Canada. When a problem is caused by multiple reasons, it often takes multiple approaches to resolving it. The volume of disputes has grown over the last decade and the reasons for this are complex. Society is becoming more litigious, which could be due to an increased awareness of legal rights and also a reduced willingness to compromise. The volume of complaints or applications to tribunals is also partly due to the rise of self-represented parties, who may not have a full understanding of the law. One of the . . . [more]

Posted in: Administrative Law, Dispute Resolution

Artificial Intelligence – AI in Governance: From Hype to Action

AI has evolved rapidly from conceptual promise to practical workplace reality, dramatically reshaping governance and organizational policy. At the 2025 GPC annual corporate governance conference session in Montreal, many AI themes came up throughout the sessions and addressed some of its impacts including how boards need to approach AI adoption balancing the charm of innovation with the necessary guardrails of governance.

The discussions held included an a real-time poll showed more than 90% of attendees already used at least one AI tool. Application of AI was particularly notable, divided evenly between professional use (46 respondents) and non-professional use (46 respondents), . . . [more]

Posted in: Administrative Law

Read in From Statute: Do the Contractual Duties of Honest Performance and Good Faith Exercise of Discretion Apply to Statutory Contract Terms?

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]

Posted in: Administrative Law

A Second CUSMA Panel on Canada’s Supply Management Regime

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]

Posted in: Administrative Law

Canada’s Supply Management System Part v – New Zealand’s Trade Challenge

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

. . . [more]
Posted in: Administrative Law

CBA Demarch on Proposed Sanctions Legislation Underscores Trade Bar’s Frustration With Canada’s Overall Management of Its Russia Sanctions Program

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]

Posted in: Administrative Law

Supply Management and CUSMA, Part IV: A Rematch and a New Challenger…a Never-Ending Story

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]

Posted in: Administrative Law

Canada Study Permit Litigation – Critical Analysis of Inconsistent Jurisprudence on Financial Requirement

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]

Posted in: Administrative Law, Substantive Law

The State of Administrative Law Teaching: A Review of Administrative Law in Context

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]

Posted in: Administrative Law, Dispute Resolution

CUSMA Dairy Challenge, Part III: Glass Half Full or Pyrrhic Loss?

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]

Posted in: Administrative Law

APEC’s Indigenous Peoples Economic and Trade Cooperation Arrangement (IPETCA)

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]

Posted in: Administrative Law

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