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This article examines two key administrative law decisions of the 2008-2009 Supreme Court of Canada term. Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 [Khosa] and Canada (Privacy Commissioner) v. Blood Tribe Department of Health 2008 SCC 44 [Blood Tribe]. Following on the footsteps of Dunsmuir, the landmark decision of 2008 that eliminated the patent unreasonableness standard, members of the Supreme Court of Canada in Khosa debated the proper interpretation of judicial review legislation. Specifically, the central issue in Khosa was whether subsection 18.1 (4)(d) of the Federal Courts Act provides a legislated standard of review that is equivalent to patent unreasonableness. While on one level, the debate of the Court focused on how to recognize and interpret legislated standards of review, its underlying theoretical premise engaged fundamental questions about deference, expertise, rule of law and how judicial review of administrative action may be appropriately placed within the broader spectrum of curial oversight.

This chapter is an excerpt from a study in which an ethnographic methodology was used to explore the concept of "tribunal independence" within access to information and privacy commissions in Canada. This chapter sets out the theory behind the ethnographic method and discusses how it was applied. As not much qualitative empirical research has been done in Canadian administrative law, the paper offers a contribution to the literature and methodologies in the field.

The 2007-2008 term was a landmark year in Canadian administrative law. The Supreme Court of Canada decision in Dunsmuir v. New Brunswick (2008 SCC 9) affected dramatically the approach to determining the applicable standard of review in administrative law. The Dunsmuir decision caused a fervour of discussion among practitioners, judges, academics and all those involved in the administrative justice community. It essentially eclipsed all other administrative law cases decided in the 2007-2008 Supreme Court term. This article discusses findings from an examination of cases that have been decided by lower courts, between the decision date and the end of 2007-2008 Supreme Court term, as a measure of Dunsmuir's impact with respect to the standard of review jurisprudence.

In this article, the administrative law decisions rendered by the Supreme Court of Canada during the 2004-2005 term are reviewed. These decisions addressed four major issues: i) exclusive and concurrent jurisdiction between competing adjudicative bodies; ii) the right to independent adjudication; iii) standard of review; and iv) expertise and deference. Questions relating to exclusive and concurrent jurisdiction occupied the most significant part of the Supreme Court's administrative law energy during the 2004-2005 term. The author analyzes these decisions on jurisdiction, paying particular attention to the many divides between the members of the Court. She argues that the decisions on jurisdiction ratione material between competing tribunals reflect a contest of two administrative law values that have become central to the Canadian administrative state: expertise and expediency. The Supreme Court's approach, which tends to privilege expediency, may have the effect of denying litigants the opportunity to obtain the most appropriate resolutions to their disputes - resolutions that benefit from the expertise and experience of the tribunals themselves. She also highlights the value of including the individual litigant's view of the dispute in the search for its essential character and possible parameters to the essential character test. Finally, the author discusses the issues related to interpreting legislative intent that arise in the cases concerning the right to independent adjudication and core expertise.

Through this paper we attempt to define the concept of the expert tribunal both as a juridical notion and a tribunal reality. The first part is devoted to a brief overview of the movement of expertise from political theory to legal concept. Following this, we discuss the use of expertise within the tribunal and on judicial review, in an era in which legislators do not always stipulate the qualifications necessary for tribunal appointment.

Is the approach currently taken by Canadian courts to determine the amount of independence that administrative tribunals require appropriate to fulfil the goals of providing administrative justice and encouraging public confidence? The author argues that it is essential to appreciate the modes of internal functioning and the normative understandings within administrative bodies in order to make a valid determination of the degree and nature of independence that they should have. For this, more qualitative empirical analysis is needed in our administrative law literature. This article begins with an overview of the rationale behind tribunal independence, outlining the current approach used by the courts in evaluating independence and impartiality on judicial review applications. It then moves to discuss some of the shortcomings of the judicial model and the utility of empirical data in evaluating questions of tribunal independence. It concludes by considering the Supreme Court’s decisions on tribunal independence and impartiality, Bell Canada v. Canadian Telephone Employees Association and its predecessor, Ocean Port Hotel Ltd. v. British Columbia (Gen. Manager Liquor Control), and evaluating whether these cases have affected the jurisprudential notion that there is significant value in “seeing the tribunal in operation.”

Co-edited by Laverne Jacobs and Justice Anne Mactavish, This volume provides analysis of key issues of administrative law and justice.

The 2005-2006 and 2006-2007 terms produced several noteworthy decisions in the area of administrative law, furthering administrative law jurisprudence in three key areas: the relationship between constitutional and administrative law, especially with respect to judicial review of exercises of administrative discretion that affect Charter rights and freedoms (Multani v. Commission scolaire Marguerite Bourgeoys); exclusive and concurrent jurisdiction (Tranchemontagne v. Ontario (Director, Disability Support Program) and Bisaillon v. Concordia University) and standard of review (Livis (City) v. Fraternite des policiers de Livis Inc. and Council of Canadians with Disabilities v. Via Rail Canada Inc.). Overall, there was a strong synergy between administrative law and human rights matters over the past two terms, with human rights issues driving many of the recent developments in the field.

The first part of this article provides an overview of the most dominant private and public law approaches that have been attempted in the courts by plaintiffs seeking redress for historical wrongs and outlines why these approaches have been unsuccessful. It also defines the notion of historical wrongs and provides background on the two historical wrongs used as a case study in this paper – Aboriginal residential schools and sexual sterilization in Alberta. In the second part, I turn to discuss the phenomenon of creating compensation schemes as an alternative to traditional court action. Two illustrative examples are the outcry surrounding the introduction of a statute to compensate the victims of sterilization in Alberta and the continuing challenges related to the Aboriginal school resolution process established by the federal government. An examination of the compensation schemes that emerged in these two contexts as well as the process of their emergence provide valuable insight into some of the tensions that can occur when systems of compensation for victims of historical wrongs are designed. I argue that these tensions may be addressed by fostering continuous dialogue between the government and the victims and through independent oversight. Finally, I offer some observations on the ways in which compensatory schemes for historical wrongs expand our traditional conceptions of administrative justice.