Your search

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.

"Chapter 11: When Intellectual Property Rights Converge – Tracing the Contours and Mapping the Fault Lines ‘Case by Case’ and ‘Law by Law’" published on 28 Nov 2008 by Edward Elgar Publishing.

In February 2006, the United Nations Interim Mission in Kosovo (UNMIK) ‘nationalized’ the Kosovo ombudsperson's institution. This entailed making the ombudsperson a Kosovar and removing oversight of UNMIK from his/her jurisdiction. Based on legal and political analysis, and fresh survey results on the views of Kosovars themselves, this article considers the prospects of the ombudsperson as a human rights accountability mechanism. It also considers the implications of the nationalization experience for peace operations generally, arguing that UNMIK has established a poor precedent in isolating itself from the ombudsperson's jurisdiction and in failing to put anything comparable in its place.

In June of this year I was asked by the Canadian Human Rights Commission (CHRC) to consider, and to make recommendations concerning, “the most appropriate mechanisms to address hate messages and more particularly those on the Internet, with specific emphasis on the role of section 13 of the CHRA [Canadian Human Rights Act] and the role of the Commission.”I was asked to “take into consideration: existing statutory/regulatory mechanisms; whether they are appropriate and/or in any manner, require further precision; the mandates of human rights commissions and tribunals, as well as other government institutions presently engaged in addressing hate messages on the Internet; whether other governmental or non-governmental organizations might have a role to play and if so, what that role might be; Canadian human rights principles, including but not limited to, those contained in the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms; Canada’s international human rights obligations; and comparable international mechanisms.” I was asked to provide a final report to the Commission on or before October 17, 2008.

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.

The 2005 Supreme Court decision of Chaoulli v. Quebec (A.G.) is the most significant Canadian case vis-a-vis health care rights in the last decade. The two litigants were Dr. Chaoulli, a physician originally from France who was frustrated with governmental limits on his ability to practice privately, and George Zeliotis, a sixty-seven-year-old patient with hip and heart conditions who had to wait nine months for a hip operation. Mr. Zeliotis thought that if he were able to purchase private insurance then he could have financed his hip operation in the private sector. Chaoulli and Zeliotis were unsuccessful at both the trial and appeal levels but struck controversial success before the Supreme Court of Canada.

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.

One consistent and disturbing trend since the birth of the Charter in 1982 is that race has been and continues to be, with a few notable exceptions, erased from the factual narratives presented to the Supreme Court of Canada and from the constitutional legal rules established by the Court in criminal procedure cases. Understanding the etiology of this erasing is not easy. In earlier pieces, the author has explored the role of trial and appellate lawyers. This paper focuses on principles of judicial review and the failure of the Supreme Court to consistently consider the impact of the constitutional rules it creates or interprets on Aboriginal and racialized communities. What makes the silence so problematic is that the Supreme Court gave itself the tool in 2001 to address part of the identified problem when it established an anti-racism principle of Charter interpretation in R. v. Golden, [2001] 3 S.C.R. 369. This paper seeks to address a number of questions focused on the legacy of Golden. What is the origin and content of the Golden principle of judicial review? What is the evidence from subsequent cases and academic commentary that this is indeed an accepted principle of constitutional interpretation? What cases from the 2007 Supreme Court term would have benefited from a critical race analysis? And, in particular, how would factoring in Golden have impacted the Court's analysis in R. v. Clayton, 2007 SCC 32? And finally, how should the Golden principle be applied in future cases?

This article examines the impact of the Canadian Charter of Rights and Freedoms on systemic racism in the criminal justice system in Canada. The article's thesis is that while there is reason to be optimistic about the possibilities of future reform, the Charter has, to date, had very little impact on racial injustice in Canada. We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling at our borders and in our streets continues to flourish, and the federal government continues to pass legislation that will further entrench the problem. Of course, some might say that it is simply naive to think that a constitutional document can make a difference and so Part II (Part I is the Introduction) briefly addresses this larger philosophical question. In Part III, the article explores why it is not the Charter that is the problem, but rather those who apply and interpret it. Racial justice has not had a chance to grow over the last 25 years because there has been a significant failure of trial and appellate lawyers to engage in race talk in the courts and a failure of the judiciary to adopt appropriate critical race standards when invited to do so.

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.

www.lapismagazine.org presents Beverley Jacobs, Mohawk from the Six Nations of the Grand River Territory in southwestern Ontario, President of the Native Women's Association of Canada, at the Teach-In on Indigenous Peoples' Resistance to Economic Globalization, November 2006. She speaks on the effect of globalization on indigenous women worldwide. Part 2

This paper offers a legal pluralist description of the transformation of Canadian labour arbitration over the second half of the twentieth century from an institution of the workplace to an institution of the state. Industrial employment and contractual relations are often described as creating a ‘law of the shop’, or as developing a ‘web of rules’ to govern interactions. These rules are a mix of state law, negotiated norms between employers and employee representatives, amongst workers themselves, and a host of other social and economic forces operating to organize relations at both the industrial and workplace level. Labour arbitrators, appointed and paid for by the parties to interpret collective bargaining agreements, historically expert in the dynamics of the workplace, and concerned with the long term relationships of the parties, have traditionally acted as translators of sorts. Labour arbitration sat at the intersection of the ‘law of the shop’ and the law of the state. Arbitrators acted to translate and mediate between the overarching principles of state law and the terms negotiated by the workplace parties, seeking to use the language and concepts of each so as to protect the system of private contracting from unwanted judicial interference. Towards the end of the 20th century, however, the increasing number of individual statutory rights regime (particularly human rights law) and the expanded scope of arbitral jurisdiction, has served to legalize this previously informal institution, and to effectively pull it into the service of the state’s law.

Plusieurs fois au cours des dernières années chacune de nous a parcouru avec beaucoup de plaisir un premier exemplaire des Cahiers de la femmes/CWS sur les femmes autochtones. Ce magazine a toujours encouragé l'écriture des femmes autochtones depuis le premier article des femmes Mohawks de Kanawake dans le deuxième numéro des Cahiers bien avant la mode des écrits autochtones. Les années ont passé et beaucoup de choses ont changé. On compte de plus en plus de femmes autochtones qui écrivent et le nombre de textes soumis pour ce numéro en est la preuve. C'est un encouragement porté par l'espoir. Un des thèmes les plus évidents de ce numéro porte sur l'importance de vivre nos traditions autochtones. Ce message omniprésent, que ce soit dans un article sur les arts ou sur la loi, n'était pas apparent dans le premier numéro sur les femmes autochtones. Un autre thème prouve que notre écriture n'est pas dissociée de notre quotidien. Nous sommes des activistes et ce numéro est sûrement une célébration des femmes activistes autochtones. Ce ne fut pas tâche facile d'organiser les sections de ce numréro à cause des liens à établir Quel défi que de vouloir catégoriser le travail autochtone ! Dans une perspective holistique chacun des articles aurait pu se retrouver dans les quatre sections et chaque section aurait pu être reliée à l'autre. Raconter des histoires par exemple, est de l'activisme et chaque histoire dans ce Cahier est engagée dans un processus de partage de nos savoirs pour le changement. En outre, les savoirs autochtones prennent leur source dans le principe de "toute ma famille"; la gouvernance implique l'application des savoirs autochtones; les arts expriment notre relation avec nos familles et ainsi de suite. Cela dit, nous espérons que les lectrices et les lecteurs apprécieront les catégories choisies. Nous croyons qu'elles offrent une nouvelle approche à notre activisme, à nos légendes, à notre savoir et à nos familles.