Canadian business is navigating through a period of growing uncertainty in terms of both global politics and trade, and faces unprecedented challenges with respect to marketing, production and investment decisions. In the current climate, the Government of Canada’s policy can be summarised in the words of Minister Chrystia Freeland: “Hope for the best, plan for the worst.”

A review of the apparently fixed U.S. position in the NAFTA negotiations is both telling and discouraging for the future of the agreement and North American trade. Canada’s early “charm offensive” led by the Prime Minster, combined with an engagement strategy tied to . . . [more]

While it is still early days, it is probably safe to say that if the Trinity Western 2018 decision[1] becomes a long-standing case of note, it will be because of its significance regarding Charter principles and not because of the role it played in the furtherance of administrative law.[2] Most of the ink (or electrons) spilled in the months and years leading up to the recent Supreme Court of Canada decision was not because Canadians – lawyers and lay-people alike – were anticipating the latest pronouncement on standard of review or procedural fairness or jurisdiction. The primary interest . . . [more]

On June 19, 2018 Steam Whistle Brewing and Great Western Brewing scored an historic victory against the Alberta Gaming and Liquor Commission: Madam Justice Marriott of the Alberta Court of Queen’s Bench declared Alberta’s beer mark-up regime unconstitutional, and awarded the brewers over $2 million in restitution. The full decision can be read here. The decision also marks the first time a court has been called on to apply the Supreme Court of Canada’s recent statement of the law in R v. Comeau with respect to the proper interpretation of s. 121 of the Constitution Act as it relates . . . [more]

Since the summer of 2017 Canada, Mexico and the United States have been negotiating with the objective of agreeing on a revised NAFTA—sometimes called NAFTA 2.0. Most observers take the view that the talks have not gone well to date. The U.S. Administration is now signaling that it wants to take a hiatus until after the Congressional mid-term negotiations in November. This, in spite of renewed pushes from Canada and the newly elected Mexican President’s calls to accelerate the talks. It seems that the parties cannot even agree on the timetable, and it has grown increasingly clear that there is . . . [more]

*Update:* Since this post was written, the Supreme Court of Canada issued its decision in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32. In short, the court upheld the law societies’ right to regulate accreditation of law schools, in the context of competing LGTBQ and religious rights.

Plus: We’re Not Done With Dunsmuir

During the playoffs, ice hockey is the delight of everyone, to paraphrase Brown J in Canada (Attorney General) v. Igloo Vikski Inc., [2016] 2 SCR 80. But who is the greatest hockey player of all time? The Hockey Writers weighed in . . . [more]

It is not just cellphone mascots who desire to be heard. Many people who have matters before administrative decision makers expect to be heard; often that expectation is that they will be able to make oral submissions. In my personal experience, I find that many people believe that they can present their case better orally than in writing. The reasons may vary: they might not believe themselves capable of presenting a strong written case; they might not have the level of schooling that makes it easy for them to make written presentations; there might be language issues; or they might . . . [more]

Canada’s liquor control and licensing regimes remain under siege; for how much longer provincial governments will be able to enforce their antiquated monopolies over the import and sale of alcohol is anyone’s guess, but the forthcoming Supreme Court of Canada decision in R. v. Comeau is expected to go a long way in answering this increasing controversial question.

While Comeau will be decided along Constitutional rather than regulatory lines, for administrative law practitioners the field of liquor control and licensing remains a rich source of beverage for thought.

For brewers and distillers, especially those of the “craft” or “micro” ilk, . . . [more]

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]

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]

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]

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]

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]