Justiciability, Access to Justice & the Development of Constitutional Law in Canada

45(4) Federal Law Review 707, 2017

17 Pages Posted: 5 Feb 2018 Last revised: 8 Jun 2018

See all articles by Gerard Kennedy

Gerard Kennedy

York University, Osgoode Hall Law School; NYU School of Law

Lorne Sossin

York University - Osgoode Hall Law School

Date Written: December 21, 2017

Abstract

Concentrating on Canadian experience, specifically litigation under the Canadian Charter of Rights and Freedoms (the ‘Charter’), this article seeks to reconcile the access to justice benefits of summary procedures with the government litigant’s duty to act in the public interest (or as a ‘model litigant’) and uphold the rule of law. Though acknowledging the benefits that can result from the use of summary procedures to end litigation, the authors observe that compliance with strict requirements in procedural law are frequently dispensed with in the Charter context. In fact, summary procedures can have a devastating effect on the development of Charter rights. The authors ultimately posit that the government should have a duty of restraint in using summary procedures to end public law litigation, and courts should be reluctant to permit the government to preclude such litigation aimed at advancing the evolution of the Charter from reaching hearings on the merits.

Keywords: Civil Procedure; Constitutional Law; Administrative Law; Justiciability; Motions to Strike; Summary Judgment

Suggested Citation

Kennedy, Gerard and Sossin, Lorne, Justiciability, Access to Justice & the Development of Constitutional Law in Canada (December 21, 2017). 45(4) Federal Law Review 707, 2017. Available at SSRN: https://ssrn.com/abstract=3111479

Gerard Kennedy (Contact Author)

York University, Osgoode Hall Law School ( email )

North York, Ontario
Canada

NYU School of Law ( email )

22 Washington Square North
New York, NY New York 10011
United States

Lorne Sossin

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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