PDF version: The need to explain yourself before imposing discipline under the law

Case considered: Pridgen v University of Calgary, 2012 ABCA 139

The Alberta Court of Appeal recently issued its judgment in the appeal by the University of Calgary from the October 2010 decision of Madam Justice Strekaf quashing a student discipline decision by the University (Pridgen v University of Calgary, 2010 ABQB 644). Madam Justice Strekaf’s judicial review decision was the subject of an ABlawg post by Heather Beyko - one of our JD students - in November 2010 (See “Facebook and Freedom of Expression”). Briefly speaking, the University imposed discipline on two undergraduate students for posting comments on Facebook concerning a course of instruction taken by them in the Faculty of Communication and Culture (as it was at the time) during the Fall 2007 semester. The University decided such comments amounted to non-academic misconduct and imposed discipline on both students including several months of academic probation. The students were successful on judicial review in front of Madam Justice Strekaf, who ruled the University decision was unreasonable in law and also infringed section 2(b) of the Charter of Rights and Freedoms. The Court of Appeal has unanimously upheld Madam Justice Strekaf’s finding that the University disciplinary decision was unreasonable under principles of administrative law. The Court of Appeal was more guarded on the Charter issue, with two of the three justices commenting it was unnecessary to consider the Charter to decide this case. My comment here focuses on the administrative law issues raised in this appeal.

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Case considered: Calgary (City) v Alberta (Municipal Government Board), 2012 ABCA 13

On January 16, 2012 the Alberta Court of Appeal issued a judgment that applies the Supreme Court of Canada’s decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 - ruling in Calgary (City) v Alberta (Municipal Government Board), 2012 ABCA 13 that the adequacy of reasons given by a statutory decision-maker are to be reviewed as a matter of substantive review on the reasonableness standard.

The decision in question results by way of appeal by the City of Calgary from Madam Justice Romaine’s decision in Calgary (City) v Alberta (Municipal Government Board), 2010 ABQB 719. I previously discussed that decision in a December 2010 Ablawg post (see here) and I have recently commented on the Supreme Court’s Newfoundland and Labrador Nurses’ Union decision (see here).

The purpose of this short comment is simply to note that the Court of Appeal has now applied the Supreme Court of Canada’s recent change in the law on sufficiency of reasons, and that earlier jurisprudence on reviewing the sufficiency of reasons given by a statutory decision-maker should be read with caution.

PDF version: Giving deference to the adequacy of reasons

Case considered: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62

Earlier this month the Supreme Court of Canada issued its decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, upholding the ruling of an arbitrator concerning vacation entitlements in a labour dispute. This unanimous Supreme Court of Canada decision written by Madam Justice Abella has changed the law in Alberta governing judicial review for adequacy of reasons provided by an administrative decision-maker. For earlier commentary and background for this post, readers should review my December 2010 ABlawg entitled “What is the applicable standard of review in assessing the adequacy of reasons?” The issue concerns the measure of judicial deference owed to an administrative decision-maker in reviewing the adequacy of reasons given for decision. Read the rest of this entry »

PDF version: Public Interest Standing and a Statutory Right of Appeal

Case Considered: Pembina Institute for Appropriate Development v Alberta (Utilities Commission), 2011 ABCA 302

The Pembina Institute for Appropriate Development (”Pembina”) recently sought leave of the Alberta Court of Appeal to appeal the June 30, 2011 interim decision of the Alberta Utilities Commission (”AUC”) to approve the construction of a coal-fired power generation facility by Maxim Power Corp. (”Maxim”) in Alberta. In Pembina Institute for Appropriate Development v Alberta (Utilities Commission), 2011 ABCA 302, Madam Justice Patricia Rowbotham denies the Pembina application for leave to appeal. However in her reasons for decision, Justice Rowbotham adds to the Alberta jurisprudence on public interest standing. I will first describe the parameters of the leave application before discussing the standing matter.

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PDF version: The Elephant in the Courtroom

Case Considered: Reece v Edmonton (City), 2011 ABCA 238

In March 2011 the Court of Appeal heard an appeal by Zoocheck Canada, People for the Ethical Treatment of Animals, and Tove Reece (collectively referred to as Zoocheck here) from Justice John Rooke’s August 2010 decision to strike Zoocheck’s application for a declaration that the City of Edmonton is violating the Animal Protection Act, RSA 2000 c. A-41 by keeping Lucy the Elephant in its Valley Zoo. See my previous ABlawg comment Lucy the Elephant v Edmonton (City) for some analysis of Justice Rooke’s decision (Reece v Edmonton (City), 2010 ABQB 538), the background concerning Lucy’s health problems and living conditions in the zoo, the applicable legislative framework, and the City’s motion to strike the Zoocheck application. In its August 2011 Reece v Edmonton (City) decision the Court of Appeal dismisses the Zoocheck appeal, with the majority written by Justice Frans Slatter upholding the finding at the Court of Queen’s Bench that the application for a declaration constitutes an abuse of process. In her lengthy dissenting opinion, Madame Justice Catherine Fraser rules the Zoocheck application is not an abuse of process and should go to trial. This Court of Appeal decision is noteworthy to me for three reasons: (1) the sharp contrast of legal theory underlying the majority and the dissent; (2) the environmental ethic informing Justice Fraser’s dissent; and (3) the comments made by Justice Fraser concerning the availability of public interest standing.

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PDF version: Giving legal effect to the designation of the Grizzly Bear as an endangered species under the Wildlife Act (Alberta) 

Decision considered: Shell Canada - Application for licenses in the Waterton Field, 2011 ABERCB 007

In March 2008 the Alberta department of Sustainable Resource Development (”SRD”) issued the Alberta Grizzly Bear Recovery Plan 2008-2013 (”SRD Grizzly Bear Recovery Plan“) under section 6 of the Wildlife Act, RSA 2000, c. W-10. The goal of the SRD Grizzly Bear Recovery Plan is to restore and ensure the long-term viability of a self-sustaining grizzly bear population in Alberta (SRD Grizzly Bear Recovery Plan at page 20). On June 9, 2010 the Minister of Sustainable Resource Development enacted the Wildlife (Endangered Animal, 2010) Amendment Regulation, Alta Reg 86/2010 which designates the grizzly bear as an endangered species under the Wildlife Act. In this comment, I set out how this designation in law implicates the decision-making powers of the Energy Resources Conservation Board (”ERCB” or “Board”).

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PDF version: The continuing mystery of standing at the Energy Resources Conservation Board 

Case considered: West Energy/Daylight Energy - Section 39 review hearing re: Linda McGinn, 2011 ABERCB 002

A couple weeks ago on ABlawg I suggested that the law governing standing to contest an energy project in front of the Energy Resources Conservation Board (ERCB) is becoming unglued (see The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4).The first change came out of the Court of Appeal’s October 2009 decision in Kelly v. Alberta (Energy Resources Conservation Board, 2009 ABCA 349, (and see The Problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan Solution). The Court of Appeal has subsequently granted two leave applications made by Susan Kelly that concern the interpretation of sections 26 and 28 of the Energy Resources Conservation Act (ERCA), R.S.A. 2000, c. E-10. These additional appeals have yet to be heard, but I am certain the Court’s ruling in both matters will result in further changes to the law concerning who must be heard at the ERCB. The ERCB’s recent standing ruling in West Energy/Daylight Energy Section 39 Review Decision, 2011 ABERCB 002 suggests to me that the Board has lost its way on how to apply section 26(2) of the ERCA.

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PDF version: The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4 

Case considered: Kelly v. Alberta (Energy Resources Conservation Board), 2011 ABCA 19

The Court of Appeal has granted leave on a matter that I believe has the potential to produce one of the most significant decisions from the Court in some time concerning energy and environmental law in Alberta. This outcome is largely due to the persistence of Susan Kelly and many other residents, along with their counsel Jennifer Klimek, who have appeared in front of the Court numerous times in recent years seeking leave to appeal decisions by the Energy Resources Conservation Board (ERCB) that issue sour gas well licences near their homes in the Drayton Valley region southwest of Edmonton. Kelly et al have been very successful in obtaining the Court’s permission to appeal several ERCB decisions, and one result of their efforts is that the law governing the ERCB is changing. (See my previous ABlawg posts The Problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan Solution and The Problem of Locus Standi at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #2.

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PDF version: What is the applicable standard of review in assessing the adequacy of reasons? 

Case considered: Calgary (City) v Alberta (Municipal Government Board), 2010 ABQB 719

This decision concerns an appeal by the City of Calgary from an order of the Municipal Government Board that set aside a business tax assessment on underground parking facilities owned by BTC Properties II in the downtown area. The Municipal Government Act, RSA 2000, c M-26 and applicable City bylaws provide that a business tax is assessable on those persons who operate a business in premises located in Calgary. The issue at the Municipal Government Board was essentially whether BTC is in the business of selling parking, and one particular item of dispute was whether the fact that BTC charges its tenants a separate and additional fee for parking space is decisive evidence that it is in the parking business. The Municipal Government Board concluded that BTC did not operate a parking business, and accordingly set aside the City’s business tax assessment. The City was unsuccessful in seeking judicial review at the Court of Queen’s Bench. One ground of appeal argued by the City was that the Board did not provide adequate reasons in its decision to set aside the tax assessment. My comment here focuses solely on this issue, and in particular examines the following question: What is the applicable standard of review to be applied by a reviewing court in assessing the adequacy of reasons provided by an administrative decision-maker? Madam Justice Romaine confirms that this issue is not settled law in Alberta (at para 42).

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PDF version: Alberta proposes to consolidate its protected areas legislation

Legislation commented on: Bill 29, Alberta Parks Act, The Legislative Assembly of Alberta, Third Session, 27th Legislature, 59 Elizabeth II

On November 4, 2010 the Minister of Tourism, Parks and Recreation introduced Bill 29, the Alberta Parks Act, for first reading in the Legislature. Bill 29 proposes to replace existing protected areas legislation in Alberta including the Provincial Parks Act, RSA 2000, c. P-35, and the Wilderness Areas, Ecological Reserves, Natural Areas and Heritage Rangelands Act, RSA 2000 cW-9. If the legislature enacts Bill 29 into law in its current form, the Alberta Parks Act will simplify the categorizations for protected areas in Alberta but the enactment will also delegate most legal authority over protected areas to Cabinet or the Minister. These are significant changes to the existing framework.

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