Remedies Matter: Evaluating the Efficacy of Remedies in Public Law Litigation for Executive Action
This paper explores the concept of meaningful remedies for individual and classes of litigants in lawsuits against the Crown. Using two case studies, this paper discusses how litigants can ensure that remedies obtained against the Crown promote accountability and enforceability, behaviour change and systemic change. These case studies include Kanthasamy v Canada (Citizenship and Immigration), which considered the scope of humanitarian & compassionate considerations for children seeking refugee protection in Canada, and First Nations Child and Family Caring Society v Canada (Attorney General), which addressed the implementation of Jordan’s Principle for First Nations children. The author uses these case studies to analyze the challenges of implementing meaningful remedies in practice and concludes with three key observations of how Crown executive actors tend to respond to remedies ordered by courts and administrative tribunals: (1) they are largely distrusting of remedies ordered by administrative tribunals; (2) they are largely motivated by political opportunism; and (3) they often opt to introduce systemic changes through soft law rather than legally binding measures.
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(2021) 30 Dal J Leg Stud 1