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: True Questions of Jurisdiction: Administrative Law’s Unicorns?

Decision considered: Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61 

Introduction

In its recent decision reversing the Alberta Court of Appeal’s decision in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association (Teachers’ Association), 2010 ABCA 26, the Supreme Court of Canada made significant statements with respect to issues of administrative law. In particular, a majority of the Court held:

1. When an issue is not raised before an administrative decision-maker it may nonetheless be raised in an application for judicial review. A court may, however, exercise its “discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so” (para 22).
2. In such cases deference may still be granted: “Where the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunal does not disappear because the issue was not raised before the tribunal” (para 50).
3. In order to be deferential in such circumstances, the court may take into account the reasons that the administrator could have given had the issue been put before it. If a “reasonable basis for the decision is apparent to the reviewing court” then that will suffice (para 55). The court may also look at reasons offered by the administrative decision-maker on the issue in other cases to determine whether the decision-maker’s approach to the issue is reasonable. In some circumstances the court may remit the matter to the decision-maker to allow reasons to be prepared.
4. Finally, and most significantly, a majority of the Court, in reasons prepared by Justice Rothstein, called into question the ability to identify a “true question of jurisdiction” to which deference should not be granted. Justice Rothstein stated that he was “unable to provide a definition of what might constitute a true question of jurisdiction” (para 42).
5. Justice Rothstein held that when an administrative decision-maker interprets its home statute it is presumptively entitled to deference (para 34). Deference will not be offered where the interpretation raises constitutional questions, a question regarding the jurisdictional lines between tribunals or a question of law “that is of central importance to the legal system as a whole and that is outside the adjudicator’s expertise” (para 43). If a party claims that deference is not owed because the matter is a true question of jurisdiction, that party will “be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness” (para 39).
6. Finally, Justice Rothstein held that once a deferential standard has been identified, it is not necessary to question further how deferential the court should be: “Once it is determined that a review is to be conducted on a reasonableness standard, there is no second assessment of how intensely the review is to be conducted” (para 47).  

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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. (more…)

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: A single window for the permitting of energy projects in Alberta: who will look out for the chickens? 

Report commented on: Enhancing Assurance: Developing an integrated energy resources regulator, a discussion document, May 2011

In a discussion paper released on May 9, 2011 under a covering message from Premier Stelmach, the provincial government has announced its intention to create a single window for the permitting of energy projects in the province. The proposal envisages a single new board that will have all of the current responsibilities of the Energy Resources Conservation Board (ERCB) plus the following additional responsibilities (as they pertain to energy projects including conventional oil and gas, oilsands, and coal - and in the future perhaps mining):

1. The responsibilities currently vested in Alberta Environment under the terms of the Environmental Protection and Enhancement Act, (EPEA) RSA 2000c. E-12, and the Water Act, RSA 2000, c.W-3 to conduct EIAs, issue licences and authorizations under the Water Act and EPEA and to deal with reclamation and remediation on private land.

2. The responsibilities currently vested in Sustainable Resource Development (SRD) to issue public land dispositions including mineral surface leases, and to deal with reclamation and remediation on public land.

Does this make sense?

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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: Access to Justice and Human Rights Cases 

Case Considered: McClary v Geophysical Services Inc., 2011 ABQB 112

Not being able to afford legal representation occurs quite frequently in civil and criminal legal cases. Some individuals choose to self-represent-either because they cannot afford legal counsel, or because they want to present their own cases. Inability to afford legal counsel has become a critical problem that leads to an acute lack of access to justice in Canada. In Alberta, recent cuts to the Legal Aid program will likely have serious effects on people with both civil and criminal issues. Even in tribunal matters, or matters where one is not required to be legally represented, such as the human rights process in Alberta, not having legal representation can have important consequences, both for the courts and for the litigants. While in some matters at the Commission (and later on appeal to the courts), the Act permits counsel to be assigned to represent and advise complainants, McClary was not such a matter. Also, it is important to note that in all matters before the Commission, respondents must hire their own legal representation should they desire it. The limited availability of legal counsel for parties in human rights cases exists partly because the human rights process is supposed to be user-friendly and low-cost to complainants and respondents.

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PDF version: Issue of Timing Arises Again: Alberta Court of Queen’s Bench Quashes Decision of Information and Privacy Commissioner for Reasonable Apprehension of Bias 

Case considered: Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner), 2011 ABQB 19 (”Wright“)

Once again, the issue of timing in the investigation of privacy complaints has been raised. In Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner) (”Wright“), pending litigation on the issue of timing currently before the Supreme Court of Canada (”SCC”) prevented the Alberta Court of Queen’s Bench from dealing with the timing issue; see the “Supreme Court hears Alberta Privacy Case” post commenting on ATA News v Information and Privacy Commissioner, 2010 ABCA 26 (”ATA News“). Nevertheless, since timing was raised again as an issue in Wright, the outcome of the SCC decision in ATA News will be important.

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PDF version: Supreme Court Broadly Interprets s. 99(1) of the National Energy Board Act 

Case considered: Smith v Alliance Pipeline Ltd., 2011 SCC 7

In Smith v Alliance Pipeline Ltd., 2011 SCC 7 (Smith) all nine judges of the Supreme Court of Canada endorsed a broad view of the power of the federal Pipeline Arbitration Committee (PAC) established under the National Energy Board Act, RSC 1985 c N-7 (NEBA) to award costs to a claimant to an arbitration proceeding. Committee costs may include solicitor-client costs of related litigation. The Court grounded its finding in subsection 99(1) of the NEBA, which if triggered requires a company to pay “all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by that person in asserting that person’s claim for compensation,” and in the history of statutory reform of the law of expropriation, specifically the principle of full compensation for expropriation. The Court was silent on the Federal Court of Appeal finding that matters for which a committee may award compensation are restricted by section 84 of the NEBA, under which litigation costs are not compensable (Alliance Pipeline Ltd. v Smith, 2009 FCA 110 at para. 55 (Smith FCA)). The impact of Smith may be limited to cases in which compensation awarded by the committee exceeds 85 percent of the value offered by the company, as the statutory basis for the Court’s decision is subsection 99(1), and the subsection is triggered only where the 85 percent threshold is exceeded.

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Case considered: Information and Privacy Commissioner v. Alberta Teachers’ Association, an appeal from 2010 ABCA 26

Yesterday the Supreme Court of Canada heard the appeal in Information and Privacy Commissioner v. Alberta Teachers’ Association, an appeal from 2010 ABCA 26. For a comment on the Court of Appeal decision, see Court of Appeal Decision on Privacy Process Likely to Have Significant Impact on Office of Information and Privacy Commissioner. Here is a summary of the case from the SCC’s website: “Ten individuals complained to the Office of the appellant Information and Privacy Commissioner that the respondent Alberta Teachers’ Association disclosed, in contravention of the Personal Information Protection Act, S.A. 2003, c. P 6.5, their personal information by publishing their names and other information about them in a publication called the “ATA News”. The adjudicator found that the Association had disclosed the complainants’ personal information contrary to ss. 7 and 19 of the Act. On judicial review, the adjudicator’s decision was quashed on the basis that the Commissioner lost jurisdiction for failing to comply with the time lines set out in s. 50(5) of the Act. The Court of Appeal, in a majority decision, upheld that decision.” The issues raised in the case include: Whether it is appropriate for a court, on judicial review, to review a matter that has not been decided by the tribunal at first instance? What consequences ought to flow when a tribunal breaches a statutorily imposed time line?