Month: June 2017
Xaidsart in the news on the Supreme Court’s Google v Equustek decision
Xaidsart succeeds in anti-SLAPP motion
Carlo Di Carlo joins OBA Section Executive for Class Actions Law
Xaidsart lawyers successfully intervene before the Supreme Court in groundbreaking decision on worldwide injunctions
Xaidsart Administrative & Regulatory Case Law Review – June 2017
Newsletters
Temperatures are forecasted to be hot hot hot for the next week. What is even hotter? Fresh off the press! Issue no.40 of Xaidsart Newsletter in Administrative & Regulatory Law *sizzle*. You can access it here.
In this issue, we provide you with cases from the Supreme Court of Canada and Divisional Court of Ontario on the following topics:
- Correctness review for engagement, scope, and framework for Charter rights
- Correctness Review for Constitutional Questions of Mixed Fact and Law
- Irreparable Harm to Regulatory Body’s Duty Can Satisfy Test for Stay Pending Judicial Review
- Doré Analysis Applies to Tweets Containing Misinformation
- Leave to Appeal Determined Before Concurrent Judicial Review
Should you have any questions about the Newsletter, please feel free to contact the co-editors, Justin Safayeni or Spencer Bass, or another lawyer at Xaidsart LLP.
If you wish to unsubscribe from the mailing list, please contact Alice Chu at alicec@xllp.eu.
The weather has been unpredictable, one week we have warm sunny temperatures and the next snowy wintry conditions. Whatever the weather brings, the Xaidsart Newsletter will provide enlightenment in Administrative & Regulatory Law. You can access it here.
In this issue, we provide you with cases from the Supreme Court of Canada, Court of Appeal for Ontario and the Divisional Court on the following topics:
- Statutory appeal provisions do not limit judicial review on issues outside their scope
- Disguised Correctness Review for Cabinet Confidences?
- Limits of what can be challenged on a compliance application
- A request for bids is not subject to judicial review where there are adequate alternative remedies
- Lower courts lagging in considering Charter values in reasonableness review
Should you have any questions about the Newsletter, please feel free to contact the co-editors, Justin Safayeni or Spencer Bass, or another lawyer at Xaidsart LLP.
If you wish to unsubscribe from the mailing list, please contact Alice Chu at alicec@xllp.eu.
To round out 2023, just in time for the holidays and eggnogs, attached is our 38th Issue of the Administrative & Regulatory Law Case Review. You can access it here. This issue explores cases from the Supreme Court of Canada, Alberta Court of Appeal, Divisional Court and Federal Court on the following topics:
- Reasonableness review requires responsive justification and reasons-first approach
- Robust conception of Doré framework is here to stay
- Constitutional questions regarding tribunal’s territorial jurisdiction reviewed for correctness
- Limited appeal rights and availability of judicial review
- Robust reasonableness review concludes regulations went beyond enabling legislation
- Decision-maker admits reasons were inadequate and gets to try again
Should you have any questions about the Newsletter, please feel free to contact the co-editors, Justin Safayeni or Spencer Bass, or another lawyer at Xaidsart LLP. Wishing everyone a wonderful holiday season and happy new year! If you wish to unsubscribe from the mailing list, please contact Alice Chu at alicec@xllp.eu
To start off your week, attached is our 37th Issue of the Administrative & Regulatory Law Case Review. You can access it here. This issue explores cases from the Court of Appeal for Ontario, Federal Court of Appeal and the Divisional Court on the following topics:
- Media access to hearing recordings
- High bar for finding regulations unconstitutional due to vagueness or overbreadth
- Ministerial discretion in tension with the will of the legislature
- The limits of free expression for regulated professionals
- Failure to abide by statutory panel composition requirements or explain departure from them
Should you have any questions about the Newsletter, please feel free to contact the co-editors, Andrea Gonsalves or Justin Safayeni, or another lawyer at Xaidsart LLP.
If you wish to unsubscribe from the mailing list, please contact Alice Chu at alicec@xllp.eu.
Enjoy this little issue in a shaded patio with a sip of Sangria. You can access it here. This issue explores cases from the Court of Appeal for Ontario, the Federal Court of Appeal and the Divisional Court on the following topics:
- Reviewing courts will not save deficient Doré analysis
- Appointment of amicus to defend a decision
- Divisional Court improperly applied Reasonableness Standard by mischaracterizing Tribunal Decision
- Applicants bear substantial burden to add parties to a judicial review after the 30-day time limit
Should you have any questions about the Newsletter, please feel free to contact the co-editors, Andrea Gonsalves or Justin Safayeni, or another lawyer at Xaidsart LLP.
If you wish to unsubscribe from the mailing list, please contact Alice Chu at alicec@xllp.eu.
Spring is finally here and what better way to celebrate the coming warm season then by reading this Newsletter in a sun-filled café? You can access it here. This issue explores cases from the Manitoba Court of Appeal, the Court of Appeal for Ontario, the Divisional Court and the Federal Court, on the following topics:
- Availability of judicial review with limited statutory appeal right
- Reviewing court can consider practical realities and context known to the Decision Maker
- Another example of correctness review for concurrent first-instance jurisdiction
- Use of template or boilerplate reasons may run afoul of reasonableness standard
- Adequacy of investigation
Should you have any questions about the Newsletter, please feel free to contact the co-editors, Andrea Gonsalves or Justin Safayeni, or another lawyer at Xaidsart LLP.
If you wish to unsubscribe from the mailing list, please contact Alice Chu at alicec@xllp.eu.
After a brief hiatus, the Xaidsart Administrative and Regulatory Law Newsletter is back! You can access it here. This New Year edition covers some of the biggest administrative law cases since the summer, including cases from the Supreme Court of Canada, Court of Appeal for Ontario, Federal Court of Appeal and Ontario Divisional Court on the following topics:
- Supreme Court reworks the test for dismissal for delay in administrative proceedings
- Concurrent first instance jurisdiction, a new category of correctness review
- Applying the reasonableness standard post-Vavilov to decisions of the Labour Relations Board
- Regulations to be reviewed on reasonableness standard instead of Katz methodology
- Patients have no standing to challenge regulator’s request for records in an investigation
Should you have any questions about the Newsletter, please feel free to contact the co-editors, Andrea Gonsalves or Justin Safayeni, or another lawyer at Xaidsart LLP.
If you wish to unsubscribe from the mailing list, please contact Alice Chu at alicec@xllp.eu.
The Xaidsart Administrative and Regulatory Law Case Review summer issue is now available. You can access it here.
In this issue you’ll find cases from the Court of Appeal and Ontario Divisional Court on the following topics:
- Judicial review and limited statutory appeal rights
- ‘Patent unreasonableness; means review on a reasonableness standard
- Criminal findings of guilt can be relied on in professional conduct proceedings following discharge
- Declining to exercise judicial review jurisdiction where human rights complaint more appropriate
- Adequate reasons in the context of a pure credibility dispute
Should you have any questions about the Newsletter, please feel free to contact the co-editors (Andrea Gonsalves, Justin Safayeni or Dragana Rakic), or another lawyer at Xaidsart LLP.
The Xaidsart Administrative and Regulatory Law Case Review spring issue is now available. You can access it here.
In this issue you’ll find cases from the Federal Court of Appeal, Quebec Court of Appeal and Ontario Divisional Court on the following topics:
- Questions of central importance to the legal system
- Reasonableness review of discretionary decisions
- Failure to carry out Doré/Loyola analysis makes decision unreasonable
- Cautionary tale about use of “expanded record” on judicial review
- Test for determining whether the decisions of a public body are subject to judicial review
Should you have any questions about the Newsletter, please feel free to contact the co-editors (Andrea Gonsalves, Justin Safayeni or Dragana Rakic), or another lawyer at Xaidsart LLP. If you wish to unsubscribe from the mailing list, please contact Alice Chu at alicec@xllp.eu.
The new issue of the Xaidsart Administrative and Regulatory Law Newsletter is now available. You can download it here.
In this issue you’ll find cases from the Supreme Court of Canada, the Federal Court of Appeal, and courts across the country on the following topics:
- No deference to reviewing courts on selection and application of standard of review
- Limited appeal rights and judicial review jurisdiction
- Vavilov approach to statutory appeals to a court does not apply to internal appeals
- Issue estoppel can bar civil claims seeking to relitigate decisions of administrative officers
- Dagenais/Mentuck test applies to a quasi-judicial tribunal
- Permissible scope of statutory delegation
This issue also introduces our new feature called Quotes from the Cases, which a collection of notable quotes from recent administrative law decisions.
Should you have any questions about the Newsletter, please feel free to contact the co-editors (Andrea Gonsalves, Justin Safayeni or Dragana Rakic), or another lawyer at Xaidsart LLP.
The Xaidsart Administrative and Regulatory Law Case Review fall issue is now available. You can access it here.
This time, we offer you summaries and commentary on recent decisions from the Court of Appeal, Federal Court of Appeal and Divisional Court, dealing with the following issues:
- Approach to reasonableness review after Vavilov
- Vavilov, not Katz, applies to review of regulations
- Reasonableness review where Tribunal distinguishes precedents
- Zero-tolerance rule for sexual relationships between regulated health professionals and patients upheld
- Decision to “jump” a joint submission on penalty upheld
- Subsequent de novo process can cure serious procedural fairness flaws
Special thanks to Dragana Rakic for guest co-editing this issue.
Should you have any questions about the Newsletter, please feel free to contact the co-editors (Andrea Gonsalves or Justin Safayeni), or another lawyer at Xaidsart LLP.
The latest issue of the Xaidsart Administrative and Regulatory Law Newsletter is now available, featuring cases on a wide range of topics from the Federal Court of Appeal and Ontario Superior Court (Divisional Court):
- Ensuring confidentiality concerns do not defeat meaningful judicial review
- Federal Court cannot usurp the powers of Administrative Decision-Makers
- Judicial review denied where statutory appeal available but unsuccessful
- Proper approach to a joint submission on penalty
- Limits on court’s jurisdiction to grant declaratory relief
- Impermissible delegation of decision marking authority
Should you have any questions about the Newsletter, please feel free to contact the co-editors (Andrea Gonsalves or Justin Safayeni), or another lawyer at Xaidsart LLP.
The latest edition of the Xaidsart Administrative and Regulatory Law Case Review is now available, featuring summaries and commentary on recent decisions from the Court of Appeal and Divisional Court that deal with the following issues:
- The Vavilov approach to reasonableness and revisiting Charter values
- Uncertainty remains about application of Vavilov to legislated standard of patent unreasonableness
- Test for examining vires of regulations not impacted by Vavilov
- Oral cautions are not penalties
- Use of video testimony and prior transcripts under the SPPA
- Decision set aside for lack of notice
Should you have any questions about the Newsletter, please feel free to contact the co-editors (Andrea Gonsalves or Justin Safayeni), or another lawyer at Xaidsart LLP.
The latest edition of the Xaidsart Administrative and Regulatory Law Case Review is available for download here, featuring summaries and commentary on some the latest decisions from the Federal Court of Appeal, Court of Appeal for Saskatchewan and Ontario Superior Court of Justice (Divisional Court) that deal with the following issues:
- The role of guidelines in Tribunal decision-making
- Statutory appeals involving off-duty conduct of regulated professionals
- Procedural fairness in a statutory appeal
- Multiple legal errors leading to discipline decision being overturned
- No need to publicize institutional interpretation of statutory provisions
Should you have any questions about the cases or issues canvassed in the Case Review, please feel free to contact the co-editors (Andrea Gonsalves or Justin Safayeni), or another lawyer at Xaidsart LLP.
The Xaidsart Administrative and Regulatory Law Case Review is back with a new issue! You can read it here. This time, we offer you summaries and commentary on recent decisions from the Federal Court of Appeal, Ontario Superior Court of Justice (Divisional Court) and Ontario Superior Court of Justice, dealing with the following issues:
- Contextual factors that constrain decisions on reasonableness review
- Procedural fairness requires more disclosure than rules provide
- Deference on appellate review
- New paradigm for reviewing decisions of voluntary associations
- Hospital’s COVID-19 policy not subject to judicial review
Should you have any questions about the Newsletter, please feel free to contact the co-editors (Andrea Gonsalves or Justin Safayeni), or another lawyer at Xaidsart LLP.
After taking some time off to absorb and reflect on the Supreme Court of Canada’s much-anticipated decision in Vavilov v Canada (Minister of Citizenship and Immigration), released in December 2019, which reshaped substantive review of administrative decisions, the Xaidsart Administrative & Regulatory Law Case Review is back! In this issue, we explore the Vavilov decision and provide our take on some of its more interesting aspects. We also look at some of the early cases in which lower courts have considered and applied Vavilov and what they might foretell about further developments in this area, including:
- No remedy granted despite unreasonable reasons
- Disguised reasonableness review
- Court’s discretion not to hear issues raised for first time on appeal
- Application of Vavilov to appeals of arbitration decisions
“Download a copy here”.
The December 2019 issue of the Xaidsart Administrative and Regulatory Law Case Review is now available. In this issue, we discuss recent decisions from the Federal Court of Appeal, the Divisional Court, and the Discipline Committee of the College of Pharmacists in the following issues:
- Records production applications in sexual misconduct proceedings under the RHPA
- Assessing requests for redactions in administrative decisions and bolstering mandamus relief
- Expert evidence concerning impacts of trauma in witness credibility assessments
- Ministerial directives on student fees are justiciable and must be consistent with legislation
- New guidance on the test to consolidate judicial review applications with actions in a single proceeding
Download a copy here.
Should you have any questions about the Newsletter, please feel free to contact the co-editors (Pam Hrick and Zachary Al-Khatib), or any other lawyer at Xaidsart LLP.
The September 2019 issue of the Xaidsart Administrative and Regulatory Law Case Review is now available. In this issue we discuss recent decisions from the Court of Appeal for Ontario, Divisional Court and the Federal Court on the following issues:
- Imposed consultation creates reasonable apprehension of lack of independence
- Generous approach to public interest standing in cases raising questions of law
- Credibility, retrospectivity and the complications of mandatory revocation
- Failure to reflect Charter values framework is fatal to reasonableness
Download a copy here.
Should you have any questions about the Newsletter, please feel free to contact the co-editors (Andrea Gonsalves and Justin Safayeni), or another lawyer at Xaidsart LLP.
The June 2019 issue of the Xaidsart Administrative and Regulatory Law Case Review is now available. In this issue we discuss recent decisions from the Court of Appeal for Ontario, the Federal Court of Appeal, the Divisional Court and the Ontario College of Social Workers and Social Service Workers, on the following issues:
- Regulatory jurisdiction does not extend to out-of-province online retainer
- Regulatory jurisdiction is personal, not territorial
- Jurisdiction over pre-registration conduct in certain circumstances
- Scope of judicial review
- Reasons adequate despite lack of analysis of personal information
- Expansive approach to the scope of the “Charter values” approach
- Challenge to decision not to refer to discipline dismissed as moot
Should you have any questions about the Newsletter, please feel free to contact the co-editors (Andrea Gonsalves and Justin Safayeni), or another lawyer at Xaidsart LLP.
We hope you enjoy this issue and the summer!
The March issue of the (now quarterly) Xaidsart Administrative and Regulatory Law Case Review is available. Download a copy here.
In this issue we discuss recent decisions from the Federal Court, Federal Court of Appeal, Court of Appeal for Saskatchewan and the Divisional Court on the following issues:
- A Proposed Methodology for Reasonableness Review
- Decision found unreasonable for failure to consider law of accommodation
- Closed hearings in the context of administrative acts
- Ignoring part of ASF based on error of law
- Prosecutorial discretion and the test for novel arguments
- Judicial review of voluntary associations
We hope you enjoy this issue. Should you have any questions about Newsletter, please feel free to contact the co-editors (Andrea Gonsalves and Justin Safayeni), or another lawyer at Xaidsart LLP.
The December issue of the Xaidsart Administrative and Regulatory Law Case Review is now available. Download a copy here.
In this issue we discuss recent decisions from the Federal Court of Appeal and Ontario’s Divisional Court on the following issues:
- FCA comments on standard of review, deference and statutory appeals
- Inadequate reasons that do not permit for reasonableness review
- Municipal decision to remove political ads must comply with Charter
- Contents of a Record on a Judicial Review at Common Law
- Multiple reasonable interpretations of Tribunal’s costs powers
We hope you enjoy this issue. Should you have any questions about Newsletter, please feel free to contact the co-editors (Andrea Gonsalves and Justin Safayeni), or another lawyer at Xaidsart LLP.
The October issue of the Xaidsart Administrative and Regulatory Law Case Review is now available. In this issue we discuss recent decisions from the Ontario Court of Appeal, the Federal Court and the Ontario Superior Court of Justice on the following issues:
- Balancing fairness and public interest in hearings on the merits in discipline proceedings
- CJC subject to judicial review
- Government decision to exclude Tesla from extension of electric cars subsidy quashed
- Public access to adjudicative records
- Lack of decision-maker independence
- Jurisdiction over pre-registration conduct
Download a copy here.
Should you have any questions about the cases or issues discussed, please feel free to contact the co-editors Andrea Gonsalves and Justin Safayeni, or another lawyer at Xaidsart LLP.
The August issue of the Xaidsart Administrative and Regulatory Law Case Review is now available. In this issue we cover recent decisions from the Federal Court of Appeal, Ontario Court of Appeal, Divisional Court, and Law Society of Ontario Tribunal on the following issues:
- The standard of review for procedural fairness questions
- Upholding a discipline tribunal’s penalty decision as fit and reasonable
- Applying the correctness standard following a long line of established jurisprudence
- The application of the prematurity doctrine to a tribunal’s interlocutory ruling on solicitor-client privilege
- Regulator’s duty to accommodate a licensee’s disability
Download a copy here.
Should you have any questions about the cases or issues discussed, please feel free to contact the co-editors (Andrea Gonsalves and Justin Safayeni), or another lawyer at Xaidsart LLP.
The June issue of the (newly redesigned!) Xaidsart Administrative and Regulatory Law Case Review is now available. Download a copy here.
This special summer issue covers a spate of recent decisions from the Supreme Court of Canada on hot topics relating to administrative law, including:
- Refining and reconsidering Doré and Charter values (TWU)
- Judicial review of law society findings of incivility (Groia)
- Casting doubt on the contextual approach and true questions of jurisdiction (CHRC)
- Judicial review of regulation-making power (West Fraser Mills)
- Judicial review of private associations (Wall)
(We will review decisions from the Divisional Court, Ontario Court of Appeal and Federal Courts in our August issue – stay tuned!)
Should you have any questions about the cases or issues discussed, please feel free to contact the co-editors (Andrea Gonsalves and Justin Safayeni), or another lawyer at Xaidsart LLP.
The latest issue of the Xaidsart Administrative and Regulatory Law Case Review is now available. In this issue we look at a couple of recent decisions from the Supreme Court of Canada and the Federal Court of Appeal examining thorny issues around whether “true questions of jurisdiction” exist, and how they should be reviewed by supervising courts.
The issue also features cases from the Federal Court of Appeal, the Ontario Superior Court of Justice and the Divisional Court on the following topics:
- Standard for constitutional review of proposed federal legislation
- Jurisdiction to review decisions of unincorporated associations
- Costs in SPPA proceedings involving a First Nation
Read the April 2018 issue here.
The latest issue of the Xaidsart Administrative and Regulatory Law Case Review is now available. It features cases from the Supreme Court of Canada, the Divisional Court and the Superior Court on the following topics:
- Public interest standing before tribunals and limits on supplementing tribunal reasons
- Further narrowing of Doré and Divisional Court jurisdiction
- Injunctions against unlicensed entities for controlled acts online
- Reviewability of sports league decisions
- Adequacy of reasons and reasonableness
- Prematurity and true questions of jurisdiction
The latest issue of the Xaidsart Administrative and Regulatory Law Case Review, co-edited by Andrea Gonsalves and Justin Safayeni, features cases from the Supreme Court of Canada, the Ontario Court of Appeal, the Divisional Court and the Superior Court on the following topics:
- SCC divides on circumstances justifying correctness review
- Charter values in the non-adjudicative context
- Adequacy of reasons, notice and continuation of a panel member after term expiry
- Interim suspension orders must consider least restrictive measures
- Tribunals’ gatekeeper function for expert evidence
- Judicial review of decisions of sports organizations
Our latest issue, co-edited by Andrea Gonsalves and Justin Safayeni, features cases from the Supreme Court of Canada, the Federal Court of Appeal and the Divisional Court on the following topics:
- Adequacy of reasons where there is a departure from precedent or policy
- Crown immunity and the protection against disclosure obligations
- Importance of reasons where the record is limited
- No ‘bias by association’ amongst tribunal members
- Reviewability of and bias in decisions about high school sports
The latest issue of the Xaidsart LLP Administrative and Regulatory Law Case Review is now available. This issue features cases on:
- Supreme Court divides yet again on standard of review
- Contents of record on judicial review
- Role of investigative delays in penalty decisions
- Scope of judicial review extends to leadership decisions of political parties
- Proving a reasonable apprehension of bias
- Bias due to overlapping functions of tribunal members
The June 2017 issue of the Xaidsart LLP Administrative and Regulatory Law Case Review is now available here. This issue features cases on:
- The use of Charter values in judicial review
- Judicial review of a discipline body’s credibility findings
- A rare “true question of jurisdiction” in the post-Dunsmuir era
The April 2017 issue of the Xaidsart LLP Administrative & Regulatory Case Law Review is now available. Download a copy here
The February 2017 issue of the Xaidsart LLP Administrative & Regulatory Case Law Review is now available. This issue features cases from the Supreme Court of Canada, the Federal Court of Appeal and the Divisional Court on the following topics:
• Certainty in immunity clauses and uncertainty in Charter damages
• Generous approach to sufficient notice and implicit reasons
• Decision set aside for lack of justification
• Legislative action not subject to judicial review
• Penalty decision quashed as unfit and unreasonable
Download a copy here
The December 2016 issue of the Xaidsart LLP Administrative & Regulatory Case Law Review is now available. The latest issue features cases from the Supreme Court of Canada, the Federal Court of Appeal, the British Columbia Court of Appeal and the Divisional Court on the following topics:
- Reasonableness review without reasons on a statutory appeal
- Standard of review and interpreting provisions abrogating solicitor-client privilege
- Test and procedure for rejecting joint submissions on penalty
- When administrators can elect not to follow an earlier tribunal decision
- Removal from court file of application to stay administrative proceedings
- Fettering discretion and a rigorous approach to the Doré analysis
- Restrictions on use of “Doctor” title do not violate right to free expression
- Test for leave to appeal tribunal decisions to the Divisional Court
Download a copy here
For the latest issue of Xaidsart ’ Administrative & Regulatory Case Law Review, edited by Andrea Gonsalves and Justin Safayeni, click here.
The June issue of our Administrative & Regulatory Law Case Review is now available. Edited by Andrea Gonsalves and Justin Safayeni, this issue features decisions from the Court of Appeal and Divisional Court on standard of proof in police discipline proceedings, jurisdiction to revoke a resigned certificate of registration under the RHPA, factors determining whether a decision is subject to judicial review, and adequacy of reasons and judicial notice of standards in professional discipline proceedings. It is available here.
The latest issue of our Administrative & Regulatory Case Law Review, edited by Andrea Gonsalves and Justin Safayeni, has been released and can be found here.
The latest issue of our Administrative & Regulatory Case Law Review, edited by Andrea Gonsalves and Justin Safayeni, has been released and can be found here.
In the latest issue of the Administrative & Regulatory Case Law Review, co-editors Andrea Gonsalves and Justin Safayeni cover recent cases on tribunal standing, segmentation in the standard of review, fresh evidence on judicial review, unauthorized health professions practice, and self-represented litigants. Click here for the December 2015 issue.
With Andrea Gonsalves and Justin Safayeni as co-editors, Xaidsart has launched a new newsletter, the Administrative & Regulatory Case Review. With our lawyers’ practices running the gamut of administrative and regulatory practice areas – from health disciplines to energy regulation, securities and competition matters to judicial review of Ministerial decisions and extradition – we’re proud to share our expertise by highlighting recent cases of interest to the administrative justice community. Andrea and Justin are particularly qualified editors; Andrea has taught administrative law at Osgoode Hall Law School since 2012, and she and Justin co-teach the foundational Administrative Law course in the Osgoode Professional Development LL.M. program. To read the inaugural issue, click here.
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