Case considered: Reece v. Edmonton (City), 2010 ABQB 538

Lucy is a 34 year old elephant who lives in the Edmonton Valley Zoo. In recent years Lucy has attracted significant media and celebrity attention, as animal welfare activists have campaigned for her transfer to a warmer climate (details on the campaign and Lucy herself are documented here). Activists insist that Lucy is in distress because of her living conditions in the Edmonton zoo. Media celebrities including William Shatner and Bob Barker have called upon the City of Edmonton to allow Lucy to move south. Lucy’s plight has attracted the attention of the local media as well (see “Free Lucy the elephant: protesters“, CBC News). The Valley Zoo insists Lucy is fine and cannot be safely moved.

In the Fall of 2009, ZooCheck Canada and the People for the Ethical Treatment of Animals (PETA) retained Ontario lawyer Clayton Ruby to advise them on possible legal remedies for Lucy. In February 2010 ZooCheck, PETA, and a local Alberta resident (Tove Reece) filed an Originating Notice in the Alberta Court of Queen’s Bench seeking a judicial declaration that the City of Edmonton (as operator of the Valley Zoo) was contravening section 2 of the Animal Protection Act, R.S.A. 2000, c. A-41, in its treatment of Lucy at the Valley Zoo. Associate Chief Justice John Rooke heard the ZooCheck application along with the City’s motion to strike the proceeding under Rule 129 of the Alberta Rules of Court, Alta. Reg. 390/1968. In Reece v. Edmonton (City), 2010 ABQB 538 Justice Rooke grants the City’s motion to strike on the basis that the ZooCheck/PETA application is an abuse of process for two reasons: (1) the application does not conform with the legislative path for bringing this issue to the Court; (2) no individual can bring a civil action to enforce criminal law. Justice Rooke also makes some obiter statements on standing which I comment on below.

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PDF version: Mutatis Mutandis: The ERCB speaks (in Latin) on the subject of carbon capture and storage

Considered: ERCB Bulletin 2010 - 22, ERCB Processes Related to Carbon Capture and Storage (CCS) Projects, June 29, 2010

After a long period of cogitation the chief energy regulator in the province has finally provided a statement of how it proposes to approach the regulation of carbon capture and storage (CCS) projects. The message is simple: apply the current rules, so far as they are applicable to CCS (the basic idea of mutatis mutandis). The issue is important: several task forces and many commentators have emphasised that the proponents of CCS projects need regulatory certainty if they are to plan and implement commercial scale CCS operations. Whether this ERCB Bulletin provides sufficient guidance to industry and sufficient comfort to the citizens of the province that CCS projects will be handled safely remains to be seen.

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PDF version: Innovative but controversial municipal bylaws survive challenges

Case considered: Keller v. Municipal District of Bighorn No. 8, 2010 ABQB 362

This case is significant in three regards. First it raises the thorny issue of standard of review regarding the reasonableness of a municipal bylaw under the Municipal Government Act (R.S.A. 2000, c. M-26) (MGA),  given that the SCC in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 (Dunsmuir) collapsed the previous standard of review categories of patent unreasonableness and reasonableness into one category, reasonableness, and section 539 of the MGA that states that no municipal bylaw (or resolution) may be challenged on the ground that it is unreasonable. Second, it considers the validity of an innovative municipal land use management tool that is not specifically authorized by the MGA, thus shedding light on the breadth of municipal authority in carrying out its land use and development functions. Third, it is the first decision to consider the effect of the Alberta Land Stewardship Act, S.A. 2009, c. A-26.8 (ALSA). The case considers who may bring a challenge regarding alleged non-compliance with the ALSA, and whether the ALSA is retroactive.

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PDF: The case of the overbilling doctor Part II: The zero-sum game of enhancing administrative legitimacy? 

Case considered: Searles v. Alberta (Health and Wellness), 2010 ABQB 157

This comment relates to an earlier post of mine back in June 2008 concerning the reassessment by the Minister of Health and Wellness on the billings of Dr. Gordon Searles, and the successful judicial review application by Searles in the Court of Queen’s Bench wherein Justice Burrows set aside the Minister’s reassessment because he found the process exhibited a reasonable apprehension of bias (Searles No. 1). (See Money attracts procedural fairness: the case of the overbilling doctor  for necessary background to this discussion.)  Subsequent to that judicial review the Minister recommenced the assessment process using a new delegate, and in September 2008 the Minister’s delegate advised Searles that he was once again reassessed in the amount of $985,777.09. Searles applied for judicial review of this second reassessment, once again asserting a reasonable apprehension of bias on the part of the Minister’s delegate (Searles No. 2).

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PDF version: Access to Justice, the Charter and Administrative Tribunals in Alberta: Who holds the Holy Grail?

Case considered: R. v. Conway, 2010 SCC 22

On June 11, 2010, the Supreme Court of Canada considered once again the jurisdiction of administrative tribunals to grant Charter remedies as “courts of competent jurisdiction” under section 24(1) of the Charter in R. v. Conway. This decision purports to broaden the power of administrative tribunals to award Charter remedies found in previous Supreme Court decisions by taking an “institutional” rather than “remedy by remedy” approach to the question of jurisdiction (at para. 23). However, Justice Rosalie Abella, writing for a unanimous Court, was also clear that a tribunal’s remedial jurisdiction under the Charter could be constrained by statute (at para. 22). Conway must therefore be read subject to Alberta’s Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3.

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PDF version: Is a dismissed complainant in a professional disciplinary proceeding sufficiently ‘aggrieved’ to seek judicial review? 

Case considered: Mitten v. College of Alberta Psychologists, 2010 ABCA 159

Many professions governed by statute have a legislated complaint process whereby the public (typically a current or former client) is able to instigate an investigation into alleged member misconduct. In March 2005, Ida Mitten filed a written complaint against her former psychologist with the College of Alberta Psychologists pursuant to section 29 of the Psychology Profession Act, R.S.A. 2000, c. P-36 (Note this legislation has been superceded by amendments to the Health Professions Act, R.S.A. 2000, c. H-7, but here the Court of Appeal applies the Psychology Profession Act in accordance with legislated transitional provisions and all section references in this comment relate to the Psychology Profession Act). Her complaint was ultimately dismissed by the College in October 2007 on the basis of insufficient evidence of psychologist misconduct.

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Disposition of Regulated Property Regulation (Draft) AR 4570 Draft DRReg 2010 03 31 (available by Email request)

PDF version: Filling the Gap: The Proposed “Disposition of Regulated Property Regulation”

On March 31, 2010 the Alberta government issued a draft regulation pursuant to the Alberta Utilities Commission Act, S.A. 2007, c. A-37.2 (”AUCA”), the Disposition of Regulated Property Regulation (Draft) (”Draft Regulation”). The power to enact regulations is contained in s. 75 of the AUCA, which gives the Lieutenant-Governor in Council the power to make regulations “adding to, clarifying, limiting or restricting” any of the powers granted pursuant to the AUCA. In this case the Draft Regulation is stated expressly to operate as “an addition to” powers granted to the AUC under the Gas Utilities Act, R.S.A. 2000, c. G-5 and the Public Utilities Act, R.S.A. 2000, c. P-5. (Draft Regulation, s. 2(1)).

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Case considered: Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), 2010 ABCA 26

PDF version:  Court of Appeal Decision on Privacy Process Likely to Have Significant Impact on Office of Information and Privacy Commissioner

In a rare move, the Alberta Information and Privacy Commissioner, Frank Work, issued a strongly worded news release in response to the Alberta Court of Appeal’s decision in Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner) (”ATA“). See January 29, 2010, “Commissioner Work expresses Grave Concern over Recent Court of Appeal Ruling.” Mr. Work said, “This decision may have dire implications for every tribunal in this province which has stipulated timelines. There should be a lot of concern on that front.” What prompted this comment?

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Case considered:  Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2009 ABQB 593

PDF version: Further Developments in the Cassels FOIPPA Matter

Recent developments in the case of Cassels highlight a difficulty faced by many people who request access to information held by public bodies. Since one is hoping to gain access to the desired information, one has to “guess” wisely about what information to ask for, from which department and in which format (e.g., electronic or paper). The agencies from which one requests information are not obligated under the law to create new records from their information, nor to incur great inconvenience and expense in order to provide the requested information. Thus, the wording of the request becomes very important-even in the absence of specific knowledge about what information is available.

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Case considered: Kelly v. Alberta (Energy Resources Conservation Board, 2009 ABCA 349

PDF Version: The problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan solution

Introduction
A person must have ‘standing’ to oppose an energy project being considered for approval by the Alberta Energy Resources Conservation Board (ERCB). In January 2009 the ERCB denied standing to Susan Kelly, Linda McGinn, and Lillian Duperron in relation to an application by Grizzly Resources to drill two sour gas wells near their residences. All three applicants reside outside the designated 2.11 km area emergency planning zone (EPZ) surrounding the gas wells and designated by Grizzly pursuant to ERCB Directive 071 - Emergency Preparedness and Response Requirements for the Petroleum Industry. Directive 071 defines an EPZ as the area surrounding a sour gas well that due to its proximity requires an emergency response plan from the well licensee. The delineation of an EPZ by and large defines the applicant’s consultation requirements set by the ERCB and, as I note below, it also informs the ERCB’s interpretation of the standing test in section 26(2) of the Energy Resources Conservation Act, R.S.A. 2000, c. E - 10. The distinguishing feature in this case involves the relatively new requirement in Directive 071 for sour gas well licensees to model a protective action zone (PAZ) which anticipates the movement of a sour gas plume upon release from the well. Kelly, McGinn and Duperron reside within the designated PAZ modelled by Grizzly, which covered a larger area than the EPZ. This fact proved significant in the subsequent Alberta Court of Appeal proceedings.

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