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 Page i ~§]V

Administrative Law in Context

FOURTHEDITION

Editors

Colleen M Flood
Faculty of Law
University of Ottawa

Paul Daly
Faculty of Law
University of Ottawa

(§ond
Toronto, Canada
2022
 A Page ii ~§JV

COPYRIGHT

Copyright © 2022 Emond Montgomery Publications Limited.

NOTICEft DISCLAIMER:All rights reserved. No part of this publication may be reproduced in any form by any means
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Names: Flood, Colleen M., editor. I Daly, Paul, 1983- editor.
Description: Fourth edition. I Previously published: Toronto, Canada: Emond Montgomery Publications Limited, 2018.
Identifiers: Canadiana 20210199768 I ISBN9781774621165 (hardcover)
Subjects: LCSH:Administrative law-Canada-Textbooks. I LCGFT:Textbooks.
Classification: LCC KE5015 .A845 2021 I LCC KF5402 .A845 2021 kfmod I DDC342.71/06-dc23
 A Page iii ~§'JV

FOREWORD

As a retired judge of now 80 years of age, I will indulge myself by taking this opportunity to tell a story about my early
experience with administrative law. My practice was in regulatory law, largely in the railway and commercial airline in-
dustries. Caseswere heard by the then Canadian Transport Commission. Until 1971, appeals were taken, on leave being
granted, directly to the Supreme Court of Canada. After the establishment of the Federal Court in 1971, appeals were
taken, again upon leave being granted, to the Federal Court of Appeal. I practised administrative law in what I call a
golden era for practitioners-during the 1970s and 1980s and up to 1992, when I was appointed to the Federal Court,
Trial Division. I say "golden era" because it was a time when, if counsel thought the tribunal had erred in law, leave to
appeal was sought and rarely denied. We argued the merits and got a decision-no detours through the labyrinth of
standard of review.
For anyone who has read my Supreme Court judgments about standard of review, you will know that I am no fan. Ini-
tially, I tried to convince my colleagues that unless a statute expressly provided for deferential review, or where that
standard was necessarily implicit in the enactment of a privative clause, legal questions decided by an administrative
tribunal (often questions of statutory interpretation) should be decided on a correctness standard. Well, I lost that bat-
tle in Canada (Citizenship and Immigration) v Khosa.1 So, if I had to accept application of standard of review on legal
questions, the process should be made as simple as possible through adoption of what was essentially a categorical ap-
proach in which, with limited exceptions, all tribunal decisions on questions of law were to be decided on a reasonable-
ness standard. But if you went back and looked at any of my decisions on statutory interpretation, you'd have a hard
time distinguishing between a correctness and a reasonableness review of the tribunal decision.
In addition to minor tinkering, about every ten years, the Supreme Court has embarked on a major overhaul of the
doctrine of standard of review: starting with CUPEv NB Liquor Corp2 in 1979, then UES, Local 298 v Bibeautt3 in 1988,
Canada (Director of Investigation and Research) v Southam lnc4 in 1997, Dunsmuir v New Brunswick5 in 2008, and now
Canada (Minister of Citizenship and Immigration) v Vavilov6 in 2019. Of course, this major decennial overhaul requires
lawyers and judges to adjust their approach to the standard of review and requires academics to provide coherence to
each new approach. The fact that the standard of review has to undergo major revisions every decade or so, with the
recent intent being simplification, might make one think about the soundnessof the doctrine.
In my view, the Supreme Court took a step in the right direction in Vavilov when it decided that statutory appeals
should be decided on a correctness standard. However, there is yet a further step to be taken. Judicial reviews of legal
questions decided by administrative tribunals should also be decided on a correctness standard. Whether the process is
called an appeal or a judicial review, a court is performing the same function: reviewing the tribunal's decision for le-
gal error.
 A Page iv ~§:JV
Having gotten all that off my chest, I have to acknowledge that my view is not the law, so I turn from what I would
like the law to be to what the law is and its exposition in Administrative Law in Context, Fourth Edition. The first
edition of this work was published in 2008, so it is apparent that administrative law evolves rapidly, with updates re-
quired every three to four years. This fourth edition is a compilation of papers written by recognized and acclaimed
administrative law scholars and practitioners. The layout of the book helpfully directs the reader by separating the con-
tents into four parts: Themes and Concepts, Procedural Fairness, Substantive Review, and Forums. The fourth edition is
timely because it addresses, in its various aspects, the Supreme Court's latest major foray into administrative law in
Vavilov.
Colleen Flood and Paul Daly are leading academics in the field of administrative law. They are superbly qualified to
have produced the fourth edition of Administrative Law in Context. In compiling this text, they have engaged col-
leagues who are experts in their own right to make a truly comprehensive analysis of the wide scope of administrative
law. This is a readable volume of virtually everything there is to know about administrative law in the early years of the
third decade of the 21st century. From the malleable nature of the "rule of law," to Aboriginal administrative law, to
questions of procedural fairness, to the duty to consult Indigenous Peoples, to standard of review after Vavilov, to
Crown liability for negligent administrative acts-to name but a few of the topics in this volume-it is obvious that this
is a most comprehensive work. Certain important cases are analyzed in depth where it is considered to be instructive.
This is a work to which, in addition to all law students, every judge and every lawyer who may be engaged in the
practice of administrative law should have ready access. The bar and the bench and the wider legal community are in-
debted to ProfessorsFlood and Daly and their colleagues for producing this up-to-date and comprehensive exposition of
all issues involving administrative law. Administrative Law in Context, Fourth Edition is a valuable contribution to the
legal community. I commend Professors Daly and Flood for undertaking this important project and for contributing to
our understanding of this subject. They deserve great credit and our gratitude for the extraordinary time and effort
they have devoted to producing this important work.

Marshall Rothstein
August 2021
 A Page v ~§IV

PREFACE

This fourth edition of Administrative Law in Context has come to pass amongst the chaos and challenges of COVID-19.
Despite these hard times, the development of our new text has been a rewarding and rejuvenating experience. This
new edition sees a change at the helm, with Paul Daly joining as co-editor, replacing outgoing editor Lorne Sossin. We
are all indebted to (now Justice) Lorne Sossinfor his inspired leadership of this text over the last three editions and
thankful for his outstanding contributions to research, to practice, to teaching, and now to jurisprudence.
One thing that has stayed constant throughout all four editions is our emphasis on the differing contexts of adminis-
trative decision-making across Canada. We have hoped to capture that vibrancy and the reality that the application of
administrative law happens not only in a courtroom but across myriad government departments, agencies, boards, com-
missions, and tribunals-affecting the lives of so many Canadians.
Apart from emphasizing the heterogeneity of administrative decision-making, our goal has been to create an accessi-
ble, readable text that reflects many perspectives in administrative law. To this end, we are so very proud to include in
this volume scholars and teachers from across Canada, with some of the most experienced voices in the field, as well as
many new ones. We continue to hope this format-an edited collection spanning the breadth and depth of administra-
tive law, combined with online resources-will continue to do justice to the dynamic nature of the field. Our sincere
thanks to our contributors in this edition and in the previous editions for their hard work and fantastic chapters. But our
thanks are even more heartfelt for this fourth edition, as our authors have delivered their chapters despite the exigen-
cies the COVID-19pandemic has put upon them.
The most obvious changes to this fourth edition are the revisions and insights stemming from the Supreme Court's
new take on substantive review in the Vavilov case. Paul Daly provides the most cogent summary possible of the issues
at stake, grounded in a historical perspective provided by Audrey Macklin. Whilst all authors have revised and recali-
brated their chapters as needed following the Vavilov developments, other new voices and chapters include Sheila
Wildeman providing a fascinating account of the remedy of habeas corpus, Alexandra Flynn analyzing judicial review of
municipal decision-making, Martine Valois explaining the quasi-constitutional status of adjudicative independence in
Quebec, Jennifer Rasotaking a look at front-line administrative decision-making, Peter Carver explaining why the issue
of "core" jurisdiction of the superior courts is-again-on the administrative law radar, and Mary Liston navigating the
divide between public law and private law.
Because administrative law is ever evolving, a further goal was to create a flexible, living text. To this end, the book
is accompanied by a website, at <httRs://adminlawincontext.emond.ca>, where both students and teachers can find
edited and full-text cases for each chapter; recommendations for additional readings; and important additions, clarifi-
cations, and updates to the published text. Readersmay also find some of their favourite chapters from earlier editions
that they may wish to review at <httRs://emond.ca/alc4>.
 A Page vi ~§JV
We would also like to extend our grateful thanks to the many people at Emond Publishing who have worked through-
out a pandemic to get this fourth edition to press, particularly Darren Smith, Kelly Dickson, Natalie Berchem, Tom Pen-
ner, and Cindy Fujimoto. We are also grateful for the administrative and research assistance provided by Arianne Kent
and Kelli White, both JD candidates at the University of Ottawa, for this fourth edition.
Finally, we would like to thank all students of administrative law-past, present, and future. You are why we do this
work, and we hope that you begin to love, as we do, the field of administrative law.

Colleen M Flood
Paul Daly
August 2021
 A Page vii ~§JV
LIST OF CONTRIBUTORS

WA Bogart
Online chapter: The Tools of the Administrative State and the Regulatory Mix, <httRs:/ /emond.ca/alc4>.

WA (Bill) Bogart, BA, LLB (University of Toronto), LLM (Harvard), is a distinguished university professor of law at the Uni-
versity of Windsor (ret). Bill has held several Social Sciences and Humanities Research Council of Canada grants to sup-
port his research, has been a Virtual Scholar in Residence for the Law Commission of Canada, and has been a frequent
government consultant. He is an author/editor of eight books-Off the Street: Legalizing Drugs (Toronto: Dundurn
Press, 2016) is his latest. He writes and comments frequently for various media.

Genevieve Cartier

Online chapter: Administrative Discretion: Between Exercising Power and Conducting Dialogue, <httRs:/ /emond.ca/alc
1>.

Genevieve Cartier is a professor of law at the University of Sherbrooke. She holds an SJDfrom the University of Toronto
and an LLM from Cambridge University. A member of the Consultative Committee of the Law Commission of Canada
from 2003 to 2006, she teaches and researches in the areas of public law and jurisprudence. Her work focuses on ad-
ministrative discretion, the rule of law, and common law constitutional ism. She is currently working on the question of
prerogative powers and on the particular aspect of foreign affairs, with an emphasis on the role of cities in such mat-
ters. From 2012 to 2015, she was the full-time research director of the Commission of Inquiry into the granting and ad-
ministration of government contracts in the construction industry, set up by the Government of Quebec. Her recent
contributions include a chapter on deliberative constitutionalism in the administrative state, a chapter on the role of
cities on the international scene, and reflections on policy and ethical aspects of public commissions of inquiry. In 2010,
she coordinated a special issue of the McGill Law Journal, dedicated to the celebration of the 50th anniversary of the
Supreme Court decision in Roncarelli v Duplessis.

Peter J Carver
Peter J Carver, MA (Toronto), LLB (McGill), LLM (University of British Columbia), is an emeritus professor of the Faculty
of Law at the University of Alberta. Professor Carver taught and wrote in the areas of Canadian constitutional, adminis-
trative, immigration, and mental health law. Prior to his academic career, Professor Carver served as a member of the
Immigration and Refugee Board and practised law in British Columbia. His publications include '" A Principle of Vital Im-
portance': The Supreme Court of Canada's Approach to Purposeful Limits on Expression in Section 2(8) of the Charter"
(2017) 75 SCLR191 and, with Isabel Grant, "PS v Ontario: Rethinking The Role of the Charter in Civil Commitment"
(2016) 53:3 Osgoode Hall LJ 999. Professor Carver wrote the chapter "Getting the Story Out," concerning public in-
quiries, in the first two editions of Administrative Law in Context and "Top Ten Questions and a Few Answers About
Substantive Review" in the third. Professor Carver served as editor-in-chief of the Review of Constitutional Studies be-
tween 2014 and 2018.
 A Page viii ~§:JV

PaulDaly
Associate Professor Paul Daly holds the University Research Chair in Administrative Law and Governance at the Universi-
ty of Ottawa, to which he was recruited from the Faculty of Law, University of Cambridge. Previously, he was succes-
sively assistant professor, associate dean, and associate professor at the Faculte de droit, Universite de Montreal and
held visiting positions at Harvard Law School and Universite Paris II, Pantheon-Assas.A graduate of University College
Cork (BCL, LLM), the University of Pennsylvania Law School (LLM), and the University of Cambridge (PhD), his influen-
tial, award-winning scholarly work on public law-dozens of books, peer-reviewed journal articles, book chapters, and
shorter pieces-has been widely cited, including by the Supreme Court of Canada, various other Canadian courts and
tribunals, the High Court of Australia, the Irish Supreme Court, and the New Zealand Supreme Court. His blog, Adminis-
trative Law Matters, was the first blog ever cited by the Supreme Court of Canada. Notable publications include A The-
ory of Deference in Administrative Law: Basis, Application and Scope (Cambridge: Cambridge University Press, 2012)
and Understanding Administrative Law in the Common Law World (Oxford: Oxford University Press, 2021). Since Sep-
tember 2019, he has been a part-time member of the Environmental Protection Tribunal of Canada.

Jennifer Dolling
Jennifer Dolling is an Ontario lawyer. She holds a BA in criminology with high distinction from the University of Toronto
(1996); an LLB from Queen's University (1999); and an LLM with a specialty in health law and policy from the University
of Toronto (2009), for which she was awarded a Canadian Institutes of Health ResearchTraining Program Fellowship.
After her call to the Ontario bar in 2001, Jennifer practised for several years in the areas of medical malpractice, pro-
fessional negligence and liability, health disciplines defence, insurance defence, and personal injury. She has appeared
before administrative tribunals, including the Health Professions Appeal and Review Board. After completing her LLM,
Jennifer worked as a research associate with the Faculty of Law, University of Toronto. She was a member of the Re-
search Ethics Board at Mount Sinai Hospital from 2007 to 2012. She also worked as research counsel in the Samuel
Lunenfeld Research Institute at Mount Sinai Hospital. Jennifer was a Council Member of the College of Physiotherapists
of Ontario from 2015 to 2019, and chair of the Registration Committee. For several years, Jennifer was a sole practi-
tioner, with her practice focused on the negotiation of clinical research contracts for hospitals and charities. She cur-
rently works for the Ontario College of Pharmacists.

Colleen M Flood
Colleen M Flood, FRSC,is a professor at the University of Ottawa and a University ResearchChair in Health Law and Pol-
icy. She is inaugural director of the Ottawa Centre for Health Law, Policy and Ethics. From 2000 to 2015, she was a pro-
fessor and Canada Research Chair at the Faculty of Law, University of Toronto, with cross-appointments to the School of
Public Policy and the Institute of Health Policy, Management and Evaluation. From 2006 to 2011, she served as a scien-
tific director of the Institute for Health Services and Policy Research, one of the Canadian Institutes of Health Research.
Her most recent book is a co-edited volume entitled Vulnerable: The Law, Policy and Ethics of COVID-19(Ottawa:
University of Ottawa Press, 2020)

Alexandra Flynn
Alexandra Flynn is an assistant professor at the University of British Columbia's Allard School of Law. Her teaching
and research focus on municipal law and governance. Professor Flynn's current project, funded by the Social Sciences
and Humanities ResearchCouncil of Canada, examines the legal relationship among Indigenous communities and munic-
ipal governments. The goal of this project is to illuminate the legal obligations of municipal governments,
 A. Page ix ~ §]V

including the duty to consult and accommodate and create reciprocal, respectful relationships with Indigenous Peoples
and First Nations. She is the author of many academic and popular media contributions and is currently working on a
book entitled Micro Legal Spaces: The Laws of Neighbourhoods and Communities, which examines overlapping geogra-
phies and governance of city spaces, including the formal and informal bodies that represent residents. She has a long
history working in law and policy and is a past TEDx speaker and a frequent media commentator.

Craig Forcese
Craig Forcese is a full professor at the Faculty of Law (Common Law Section), University of Ottawa, where he also
serves as vice dean (graduate studies). He is also an adjunct research professor and senior fellow at the Norman Pater-
son School of International Affairs, Carleton University. Craig has a BAfrom McGill University; an MA from the Norman
Paterson School of International Affairs, Carleton University; a JD (summa cum laude) from the University of Ottawa;
and an LLM from Yale University. He is a member in good standing of the bars of Ontario, New York, and the District of
Columbia.

Cristie Ford
Cristie Ford is a professor at the Peter A Allard School of Law, University of British Columbia (UBC). Her research focus-
es primarily on regulatory theory and administrative law as they relate to international, US, and Canadian financial and
securities regulation, as well as to access to justice and the regulation of the legal profession. Her most recent
book, Innovation and the State: Finance, Regulation, and Justice (Cambridge: Cambridge University Press, 2017), ar-
gues that innovation is the most profound challenge facing regulation today and proposes epistemological, normative,
and technique-oriented responsesto that challenge. Prior to joining UBC, Professor Ford practised in securities regula-
tion and administrative law, including several years at Davis Polk and Wardwell LLP in New York. She obtained her mas-
ters and doctoral degrees from Columbia Law School, where she also taught in a variety of capacities. She is a member
in good standing (non-practising) of the bars of British Columbia and New York (State and Federal).

Evan Fox-Decent
Evan Fox-Decent is a full professor and Canada Research Chair in Cosmopolitan Law and Justice at the Faculty of Law,
McGill University. He teaches and publishes in legal theory, administrative law, First Nations and the law, immigration
law, agency law, international law, and the law of fiduciaries. His first book, Sovereignty's Promise: The State as Fidu-
ciary (Oxford: Oxford University Press, 2011), explores the implications of viewing the state and its institutions as fidu-
ciaries of the people subject to their power. His second monograph, with Evan J Criddle, is Fiduciaries of Humanity:
How International Law Constitutes Authority (New York: Oxford University Press, 2016). This work explains the authori-
ty of international law by viewing states as stewards of humanity as well as their own people.

Kate Glover Berger

Kate Glover Berger is an assistant professor at Osgoode Hall Law School, York University. Her expertise lies in adminis-
trative and constitutional law, with an emphasis on administrative constitutionalism, the nature of the administrative
state, institutional design and procedural fairness, and constitutional architecture and amendment. Some of her recent
publications appear in the McGill Law Journal, the Journal of Law and Social Policy, the Journal of International Con-
stitutional Law, and the Supreme Court Law Review, along with multiple edited collections. She has been invited to
present her research around the world, including at national and international conferences; as an expert witness before
the Special Senate Committee on Senate Modernization; and in professional education programs for judges, lawyers,
 APagex ~;:JV
and administrative decision-makers. Prior to joining Osgoode, Kate taught in the Faculty of Law at Western University
(2015 to 2020), where she was awarded the Western Law Award for Teaching Excellence and the J McLeod Professor of
the Year Award. Kate was called to the bar of Ontario in 2007, after which she served as law clerk to the Honourable
Justice Abella of the Supreme Court of Canada, practised civil and public law litigation at Borden Ladner Gervais, and
acted as counsel for the amicus curiae in the Senate Reform Reference before the Supreme Court of Canada. She holds
degrees in philosophy and law from McGill University, the University of Cambridge, and Dalhousie University, earning
her doctorate in law at McGill as a Vanier Scholar, an O'Brien Fellow in Human Rights and Legal Pluralism, and the Ian
Pilarczyk Fellow.

Angus Grant
Angus Grant, BA (Trent), JD/MSW (Toronto), PhD(Osgoode), is a lawyer, academic, and administrative tribunal member.
He is currently assistant deputy chairperson at the Refugee Appeal Division, Immigration and Refugee Board of Canada
(IRB). Prior to his appointment to the IRB, Angus was a visiting professor of law at Osgoode Hall Law School, York Uni-
versity where he taught immigration and refugee law and administrative law. He has published extensively on a range
of topics, and, in his practice, he has appeared before a variety of Canadian appellate courts, including the Supreme
Court of Canada. The views expressed in this chapter are those of the author, in his personal capacity.

Andrew Green
Andrew Green is a professor and Metcalf Chair in Environmental Law at the University of Toronto, Faculty of Law. His
research and teaching interests focus on administrative law, environmental law, international trade (including how in-
ternational trade rules constrain a country's ability to implement domestic environmental policy), and judicial decision-
making. His most recent book, Commitment and Cooperation on High Courts: A Cross-Country Examination of Institu-
tional Constraints on Judges (with Ben Alarie) (New York: Oxford University Press, 2017), examines how differences in
the design of high courts across countries impact how judges make decisions. He holds an LLB from the University of
Toronto and an LLM and JSD from the University of Chicago. Before joining the faculty, Professor Green practised envi-
ronmental law in Toronto.

Gerald Heckman
Gerald Heckman is an associate professor at the Faculty of Law, University of Manitoba, where he teaches administra-
tive, constitutional, and advanced public law and language rights. After receiving his LLB from the University of Toron-
to, he clerked at the Federal Court of Canada; obtained an LLM in administrative law from Queen's University; prac-
tised labour, employment, and human rights law at the Toronto office of a national firm; and earned his PhDon the role
of international human rights norms in Canadian administrative and constitutional law at Osgoode Hall Law School. In
addition to co-editing Administrative Law: Cases, Text, and Materials, 8th ed (Toronto: Emond, 2022) with Professors
David J Mullan, Gus Van Harten, and Janna Promislow, he is a contributing author for Immigration and Refugee Law:
Cases,Materials, and Commentary, 3rd ed (Toronto: Emond, 2020) and JurisClasseur- Droit ConsUtutionnel (Toronto:
LexisNexis, 2011) (loose-leaf updated 2020, release 18). He is the recipient of several faculty and university teaching
awards.

Justice Grant Huscroft

Online chapter: From Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial Review, <httQs:/ / emo
nd.ca/alc4>.
 A Page xi ~§IV
Grant Huscroft is a Justice of the Court of Appeal for Ontario. He was appointed to the Court in 2014 following a
lengthy academic career at Western University and the University of Auckland. His research focused on constitutional
law and judicial review in Canada and the Commonwealth.

Laverne Jacobs
Laverne Jacobs is a full professor and former associate dean (research and graduate studies) at Windsor Law. She holds
degrees in common law and civil law from McGill University and a PhD from Osgoode Hall Law School. She publishes and
teaches in the areas of administrative law, law and disability, human rights, and empirical research methodologies. She
is also the founding director of the Law, Disability and Social Change Project, a research and public advocacy centre at
Windsor Law.
Dr Jacobs' scholarship aims to bridge the gap between public law jurisprudence and public law realities through
qualitative empirical inquiry. She is particularly interested in the ways in which ethnography, legal anthropology, and
examinations of the intersection of law norms and informal order serve to give insight into the on-the-ground work of
and within administrative bodies. Her qualitative research on administrative justice has explored meanings of the con-
cept of tribunal independence within Canadian access to information and privacy commissions, and examined the effec-
tiveness of ombuds officer oversight for regulating access to information. She is currently completing a qualitative re-
search study that focuses on access to administrative justice for marginalized communities. Among other publications,
she has co-edited a book on comparative administrative process, The Nature of Inquisitorial Processes in Administra-
tive Regimes: Global Perspectives (Surrey, UK: Ashgate, 2013) (with SashaBaglay).

Justice Freya Kristjanson

Online chapter: Advocacy Before Administrative Tribunals, <httRs:/ /emond.ca/alc4>.
Justice Freya Kristjanson was appointed to the Ontario Superior Court of Justice, Toronto Region, in 2016. Justice Krist-
janson was called to the bar in 1989. Prior to her appointment, she practised administrative and civil litigation. She taught
administrative law at the Faculty of Law, University of Toronto and in the Osgoode Professional LLM Programme. She was
recognized as a leading practitioner by Lexpert and by the Best Lawyers in Canada. She served as a member of the
Board of Directors of the Advocates' Society, sat on the Editorial Board of the Canadian Journal of Administrative Law and
Practice, and was appointed vice-chair of the Financial Services Tribunal Legal Advisory Committee. She was awarded
the SOAR Medal in 2016 by the Society of Ontario Adjudicators and Regulators. Justice Kristjanson graduated from
Queen's University in 1983; from the Faculty of Law, University of Victoria, in 1987; and clerked at the Supreme Court of
Canada.

Mary Liston
Dr Mary Liston is an associate professor at the Peter A Allard School of Law, University of British Columbia. She teaches
public law, including administrative and constitutional law, legal theory, and law and literature. Her work grapples with
the normative and institutional challenges that political power poses for the rule of law and democratic governance and
addresses-where possible-the legal means to improve accountability, public participation, and structures of justifica-
tion for state action. Professor Liston has developed expertise in modes of interpreting legal texts as well as the inter-
sections between public law and Indigenous legal orders in Canada. She has also brought a comparative perspective to
bear on public law jurisdictions such as Australia, New Zealand, South Africa, the United Kingdom, and the United
States. Her work has been cited by the Supreme Court of Canada in several precedential administrative law cases. She
is a co-author of Public Law: Cases, Commentary, and Analysis, 4th ed (Toronto: Emond, 2020).
 A Page xii ~§IV

Audrey Macklin
Audrey Macklin is the director of the Centre for Criminology and Sociolegal Studies, professor of law and Chair in Hu-
man Rights at the University of Toronto. She is a Trudeau Foundation Fellow and a Fellow of the Canadian Institute for
Advanced Research. Professor Macklin also served as a member of Canada's Immigration and Refugee Board from 1994
to 1996. Her research and writing interests include transnational migration, citizenship, administrative law, and busi-
ness and human rights, and she has published extensively on these topics. She is co-author of Immigration and Refugee
Law: Cases, Materials, and Commentary, 2nd ed (Toronto: Emond, 2015) and The Governance Gap: Extractive Indus-
tries, Human Rights and the Home State Advantage (London: Routledge, 2014).

Leslie McIntosh
Online chapter: Advocacy Before Administrative Tribunals, <httRs:/ /emond.ca/alc4>.
Leslie McIntosh, BA (University of Toronto, 1974), LLB (University of Western Ontario, 1977), LLM in administrative law
(Osgoode Hall Law School, 2003), was called to the bar of Ontario in 1977 and started her career with the Ontario Min-
istry of the Attorney General in 1979. Initially, she was seconded to the Ministry of Community and Social Services,
where she appeared before a broad range of administrative tribunals. In 1982, she transferred to the Crown Law Office,
Civil, of the Ministry of the Attorney General, where she was subsequently appointed general counsel. She retired from
the public service in 2011. Her practice consisted mainly of appellate work in the Supreme Court of Canada, the Court
of Appeal, and the Divisional Court in the areas of civil litigation and administrative law. She was counsel for the Prov-
ince of Ontario at the Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, and was counsel in the
SARSactions. Leslie was an adjunct professor of administrative law at the Faculty of Law, University of Toronto. She is
the author of numerous articles and publications and was a regular speaker at the Ontario Bar Association and other
continuing legal education events.

Naiomi Metallic
Naiomi Metallic, BA (Dalhousie), LLB (Dalhousie), LLL (Ottawa), LLM (Osgoode), and PhD (Alberta, in progress), is an as-
sistant professor at the Schulich School of Law at Dalhousie University, where she holds the Chancellor's Chair in Aborig-
inal Law and Policy. She is from the Listuguj Mlgmaq First Nation, located within the Gespegewagi district of Migmagi.
Naiomi was a law clerk for the Honourable Michel Bastarache at the Supreme Court of Canada in 2006-07. She continues
to practise law with Burchells LLPin Halifax (where she practised for nearly a decade before joining the law school,
primarily in the firm's Aboriginal law group). She has been named to the Best Lawyer in Canada list in Aboriginal law
since 2015 and was chosen for Canadian Lawyer magazine's 2018 Top 25 Most Influential Lawyers in the area of Human
Rights, Advocacy and Criminal law. As a legal scholar, she is most interested in writing about how the law can be har-
nessed to promote the well-being and self-determination of Indigenous Peoples in Canada, including the revitalization
of their legal orders.

Justice Alexander Pless

Alexander Pless, jcs, BA Hon, BCL/LLB (McGill), MPA(Harvard), is a puisne judge of the Superior Court of Quebec. Prior
to his appointment, Justice Plesswas senior general counsel at Canada's Department of Justice, National Litigation Sec-
tor. He practised in the areas of constitutional law, administrative law, Crown liability, and national security matters.
Justice Pless teaches constitutional law, administrative process, and judicial review of administrative action at McGill
University, where he is an adjunct professor. His writing and academic interests include all of these areas. He has acted
for the Attorney General of Canada before all levels of court in Canada.
 A Page xiii ~§IV

Janna Promislow
Janna Promislow, BA (Alberta), LLB (Victoria), LLM (York), PhD (York), is an associate professor at the University of Vic-
toria's Faculty of Law. Before her move into academia, she clerked with the Law Courts of Alberta, practised law with
Davis & Company in the Northwest Territories, and served as a policy advisor for the Government of Ontario on consul-
tation with Aboriginal communities. Her teaching and research interests encompass constitutional and administrative
law, Aboriginal law, Indigenous law, colonial legal history, Indigenous-settler relations, and legal pluralism. She has pub-
lished on the development of intersocietal law between Indigenous and European fur traders, treaty relationships and
interpretation, and Aboriginal administrative law.

Jennifer Raso
Dr Jennifer Raso, BA (Concordia), LLB (University of Victoria), SJD (University of Toronto), Postdoctoral Fellow (Univer-
sity of New South Wales), is an assistant professor at the Faculty of Law, University of Alberta. She studies how algorith-
mically driven technologies transform front-line administrative decisions, and the consequences for procedural fairness
and substantive justice. An award-winning sociolegal scholar, Dr Raso's research has been funded by the Social Sciences
and Humanities Research Council (Canada) and the Endeavour Fellowships Program (Australia), cited by the United Na-
tions Special Rapporteur on Extreme Poverty and Human Rights, and recognized by the Canadian Law and Society Asso-
ciation (best article prize, 2018) and the University of Cambridge (Richard Hart prize, 2016). Her recent scholarship ap-
pears in the Oxford Handbook of Administrative Justice, edited by Joe Tomlinson, Robert Thomas, Marc Hertogh, and
Richard Kirkham (Oxford: Oxford University Press, 2021); Frontiers of Public Law, edited by Jason Varuhas and Shona
Wilson Stark (Oxford: Hart, 2020); the University of Toronto Law Journal; the Canadian Journal of Law EtSociety;
and PoLAR: Political and Legal Anthropology Review. Before undertaking graduate studies, Dr Rasowas called to the
bar of Ontario and practised administrative, municipal, and social welfare law with the City of Toronto's Legal Ser-
vices Division.

Lorne Sossin
Lorne Sossin, BA (McGill), MA (Exeter), PhD (Toronto), LLB (Osgoode), LLM, JSD (Columbia), is a judge of the Ontario
Court of Appeal. Prior to his judicial appointment, he was a professor at and dean of Osgoode Hall Law School, York
University.

Martine Valois
Professor Martine Valois is a graduate of the Faculte de droit, Universite de Montreal (LLB 1996, LLD 2010) and of Har-
vard University (LLM 1991). She has been a member of the bar of Quebec since 1988. After starting her career in pri-
vate practice with the firm McCarthy Tetrault in Montreal, Professor Valois worked for the Department of Justice Cana-
da, where she was senior counsel in the immigration law directorate. In 2011, she joined the Faculte de droit at the
Universite de Montreal. Professor Valois's doctoral research was on judicial independence and the evolution of the judi-
cial function as part of a larger historical and sociological process. Professor Valois is co-editor-and author of three
chapters-of a book to be published in autumn 2021 that will celebrate the 50th anniversary of the Federal Courts of
Canada (Martine Valois et al, The Federal Court of Appeal and the Federal Court: 50 Yearsof History (Toronto: Irwin
Law, 2021)). Professor Valois teaches administrative law, constitutional law, immigration law, and legal history. She is
also Academic Advisor to the Canadian Institute for the Administration of Justice, a non-profit, independent organiza-
tion that brings together the stakeholders in the justice system and conducts specialized seminars and multidisciplinary
programs.
 A Page xiv ~§]V

Sheila Wildeman
Sheila Wildeman, BA (University of Toronto), MA (Columbia), LLB (Dalhousie), LLM (University of Toronto), is an as-
sociate professor at Dalhousie University's Schulich School of Law. Professor Wildeman's teaching areas include public
law, administrative law, and jurisprudence. Her research and writing focus on human rights and disability law and cur-
rently explore whether or how law may facilitate deinstitutionalization/decarceration. With Richard Devlin, Sheila has
co-edited a book of comparative public law focused on judicial complaints and discipline systems: Disciplining Judges:
Contemporary Challenges and Controversies (Cheltenham, UK: Edward Elgar, 2021).
 A, Pagexxxi ~§JV
TABLE OF CASES

2747-3174 Quebec Inc v Quebec (Regie des permis d'alcool), [199613 SCR919. 1996 Canlll 153 218, 230, 254, 255, 290, 295, 453

9147-0732 Quebec inc. Quebec (AG) v. 2020 SCC32 375, 386, 390. 391, 392, 397

9149-4567 Quebec inc (Villa Berthier) c Tribunal administratif du travail, 2020 QCCS2262 331

114957Canada Ltee (Spraytech, Societe d'arrosage) v Hudson (Town), 2001 SCC40 354, 384

1085372 Ontario Limited v City of Toronto, 2020 ONSC1136 341, 359

1120732 BC Ltd v Whistler (Resort Municipality). 2020 BCCA101 338, 356

1582235Ontario Limited v Ontario, 2020 ONSC1279 348, 349

1765662Alberta Ltd (Windermere Registry) v Edmonton (City), 2020 ABCA137 360

1909988Ontario Limited v North Cowichan (Municipality), 2020 BCSC1666 362

2072231Ontario Limited v The Corporation of the City of London, 2020 ONSC4032 364

2122157Ontario Inc v Tarion Warranty Corporation, 2016 ONSC851 (Div Ct) 58

2127423Manitoba Ltd o/a London Limos v Unicity Taxi Ltd, 2012 MBCA75 187

AB v Canada (Citizenship and Immigration), 2020 FC 203 333

Abbass v The Western Health Care Corporation. 2017 NLCA24 466, 468, 470

Abbotsford (City) v Shantz, 2015 BCSC1909 387

Abu Dakka v Canada (Citizenship and Immigration), 2020 FC 625 333

Ade/eye v Canada (Citizenship and Immigration), 2020 FC 640 333

ADH, R v, [201312 SCR269, 2013 Canlll 28 377

Advocacy Centre For Tenants-Ontario v Ontario Energy Board, 2008 Canlll 23487. 293 DLR(4th) 684 (Div C 343
u
Aga v Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA10 556

Agraira v Canada (Public Safety and Emergency Preparedness), 2013 sec36 194, 195. 205, 324, 334

AH v Fraser Health Authority, 2019 BCSC227 468, 488, 489

Ahmadzai (Re), 2020 ONCA169 345

Air Canada v British Columbia, [198911 SCR1161. 1989 CanLII 95 543

Air Canada v Toronto Port Authority, 2011 FCA347 60, 180. 542, 555, 566

Airdrie (City) v 803969 Alberta Ltd, 2020 ABQB114 359

Al Bardan v Canada (Immigration, Refugees and Citizenship). 2020 FC733 335

Alberta v Hutterian Brethren of Wilson Colony. 2009 SCC37 90

Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC61 33, 187, 276, 320, 325, 349

Alberta (Information and Privacy Commissioner) v University of Calgary. 2016 sec53 320, 325

Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission), 2006 ABQB904 433

Alberta (Ombudsman) v Alberta (Human Rights and Citizenship Commission), 2008 ABQB168 53

Alberta Teachers' Association v Alberta (Information and Privacy Commissioner), 2011 ABQB19 276

Alberta Union of Provincial Employees v Alberta. 2020 ABCA284 338

Alberta Union of Provincial Employees v Alberta Health Se/Vices, 2020 ABCA4 351

Alex Couture inc, Canada (Procureur general) c, 1991 Canlll 3120. 83 DLR (4th) 577. leave to appeal 249, 254
denied, [199212 SCRv, 91 DLR (4th) vii
 A Page xxxii ~v
Alexis v Alberta (Environment and Parks), 2020 ABCA188 351, 361, 364

Alexis Nakata Sioux Nation v Canada (Minister of Indian Affairs and Northern Development), 2006 FC 721 146

Ali v Canada (AG), 2017 ONSC2660 489

Ali v Canada (Minister of Citizenship and Immigration), 2004 FC 1153 507

Ali v Head Teacher and Governors of Lord Grey School, [2004] EWCACiv 382, [2004] All ER 628 555

Allman v Amacon Property Management Services Inc, 2007 BCCA302 63

Alsoloussi v Canada (AG), 2020 FC 364 104

Anisminic Ltd v Foreign Compensation Commission, [1969] 2 AC 147 (HL) 310

Anne & Gilbert Inc v Government of PEI, 2012 PECA4 62

Anns v Merton London Borough Council, [1978] AC 728 539, 540, 541, 542, 561

Antinello v Warden of Dorchester Institution, 2018 NBQB9 481

AP v Canada (Citizenship and Immigration), 2020 FC 906 335

Application under s 83.28 of the Criminal Code (Re), 2004 SCC42 294

Appulonappa, R v, 2015 sec59 385

Archer v Luterbach (2001), 199 FTR 96, 2001 CanLll 22166 (F(l 206

Associated Developers Ltd v Edmonton (City), 2020 ABCA253 360

Association des juges administratifs de la Commission des lesions professionnelles c Quebec (Procureur 262
general), 2011 QCCS 1614 (decision on appeal)

Association des juges administratifs de la Commission des lesions professionnelles c Quebec (Procureur 302
general), 2013 QCCA1690

ATCOGos & Pipelines Ltd v Alberta (Energy & Utilities Board), 2006 SCC4 43, 343

Attawapiskat First Nation v Canada, 2012 FC 948 58, 139, 146, 147

Att Gen of Can v Inuit Tapirisat, [1980] 2 SCR 735, 1980 CanLII 21 23, 42, 77, 119,182,201,277

Attorney General for Ontario v Information and Privacy Commissioner, 2020 ONSC5085 331

Attorney General of Canada v Boulachanis, 2019 FCA100 257

Authorson v Canada (AG), 2003 sec39 201

B010 v Canada (Citizenship and Immigration), 2015 sec58 376, 377

Bacon v Surrey Pretrial Services Centre (Warden), 2010 BCSC805 483, 486, 489

Badger, R v, [1996] 1 SCR771, 1996 CanLII 236 151, 160

Baker v Canada (Minister of Citizenship and Immigration) [1997] 2 FC 127, 1996 CanLII 3884 200, 371

Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR817, 1999 CanLII 699 2, 25, 27, 29, 36, 76, 80, 90, 91, 97, 98, 106,
108,

134, 158, 162, 179, 186, 187, 188, 189, 190,

194, 199, 200, 201, 203, 204, 205, 206,
207,208,209,210,211,212,220,221,
223, 224, 225, 229, 230, 261, 270, 311,
314, 315, 317, 319, 325, 366,371,373,
380, 381, 382, 383, 384, 397, 404, 409,
419,429,431,453,475,478,483,494,
498,499, 500, 504, 506, 507, 509, 510,
511, 513, 514, 517, 519

Balev, Office of the Children's Lawyer v, 2018 sec16 374

Ball v McAulay, 2020 ONCA481 348

Bancroft v Nova Scotia (Lands and Forests). 2020NSSC175 337

Banfield v Nova Scotia (Utility and Review Board), 2020 NSCA6 359

Bank of Montreal v Li, 2020 FCA22 348

Barreau de Montreal, Quebec c, 2001 CanLII 20651,j2001]_,!_0. No 3882 (Ql.,.)JCAl 262

Barreau de Montreal, Quebec (Procureure generate) c, 2001 CanLII 40130, 48 Admin LR (3d) 82 (Qc CA) 301

BC Motor Vehicle Act, Re, !1985] 2 SCR486, 1985 CanLII 81 477, 486

Beach Place Ventures Ltd v British Columbia (Employment Standards Tribunal), 2020 BCSC327 348

Beals v Nova Scotia (AG), 2020 NSSC60 336, 485

Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 89, 159, 234, 237, 243, 244, 245
 A Page xxxiii -~·H;;JV

Beaumann v Canada (Minister of Justice), 2020 BCCA124 335

Beauregard, The Queen v, [1986] 2 SCR56, 1986 Canlll 24 252, 253, 281, 300

Bedford, Canada (AG) v, 2013 sec72 486

Begum v Canada (Citizenship and Immigration), 2020 FC 162 335

Beliveau St-Jacques v Federation des employees et employes de services publics inc, [1996] 2 SCR345, 199 299
6 Canlll 208

Bell Canada v British Columbia Broadband Association, 2020 FCA140 342

Bell Canada v Canada (AG), 2017 FCA249 31

Bell Canada v Canada (AG), 2019 sec66 31, 341

Bell Canada v Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 SCR172 340
2.,1989 Canlll 67

Bell Canada v Canadian Telephone Employees Association, 2003 sec36 263, 295, 297

Bell Canada v Hussey, 2020 FC 795 333

Bell ExpressVu Limited Partnership v Rex, 2002 SCC42 91

Benhaim v St-Germain, 2016 sec48 340

Benitez v Canada (Minister of Citizenship and Immigration), 2007 FCA199 438

Bergeron v Canada (AG), 2015 FCA160 211, 212, 213

Bergman v lnnisfree (Village), 2020 ABQB661 345

Bezaire v Windsor Roman Catholic Separate School Board, 1992 Canlll 7675...'lJIB..(3dlliZ..{Div Ct) 438

Bhasin v Hrynew, 2014 sec71 549

Big M Drug Mart, R v, [1985] 1 SCR295, 1985 Canlll 69 388, 389, 391-92

Bird, R v, 2019 sec7 467

Black v Canada (Prime Minister) 2001 CanLIi 8537, 54 OR (3_Qj...l!D~. 77

Blencoe v British Columbia (Human Rights Commission), 2000 SCC44 81, 226, 230

Blois v Onion Lake Cree Nation, 2020 FC 953 169

Bombardier Aeronautique inc c Commission des normes de l'equite, de la sante et de la securite au 331
travail, 2020 QCCA315

Bonamy v Correction Service Canada (Commissioner), 2000 SKQB385 471

Borge/ v Paintearth (Subdivision and Development Appeal Board), 2020 ABCA192 341, 359

Borowski, Canada (Minister of Justice) v, [1981] 2 SCR575, 1981 Canlll 34 433

Borowski v Canada (AG), [1989] 1 SCR342, 1989 Canlll 123 58, 489

Boucher v Logistik Unicorp Inc, [2001] JQ No 64 (Qll, JE 2001-379 (CA), leave to appeal to SCCrefused, 50
[2001] CSCRNo 115 (Qll

Boukhanfra v Canada (Citizenship and Immigration), 2019 FC 4 188, 193, 517

Boulachanis v Canada (AG), 2019 FC 456 487

Boulachanis c Thibodeau, 2020 QCCS1020 472, 487

Bowden Institution v Khadr, 2015 ABCA159 466

Brake v Canada (AG), 2019 FCA274 545

Brazeau v Canada (AG), 2020 ONCA184 483, 544, 545

Brewer v Her Majesty the Queen, 2020 NSSC308 469, 473

British Columbia Civil Liberties Association v Canada (AG), 2018 BCSC62, var'd 2019 BCCA228 225, 462

British Columbia Civil Liberties Association v Canada (AG), 2019 BCCA228, leave to appeal granted, SCC 225, 230, 386, 462
no 38814 (QL)

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British Columbia Government Employees' Union v British Columbia (AG), [1988] 2 SCR214, 1988 Canlll 3 451

British Columbia Lottery Corp v Vancouver (City of), 1999 BCCA18 356

British Columbia (Workers' Compensation Appeal Tribunal) v Fraser Health Authority, 2016 sec25 534
Discovering Diverse Content Through
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