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?

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 Continued Complexity of Administrative Law post-Dunsmuir 

Cases considered: Mitzel v. Alberta (Law Enforcement Review Board), 2010 ABCA 336; Calgary (City) v. Alberta (Municipal Government Board), 2010 ABQB 719

The Supreme Court’s judgment in Dunsmuir v. New Brunswick, 2008 SCC 9, purported to identify a “more coherent and workable” approach to substantive judicial review (Dunsmuir at para. 32). Whether, as a general matter, Dunsmuir has achieved this ambition is uncertain. It does seem to have liberated courts from the formalistic analysis that was previously de rigueur in the standard of review analysis. On the other hand, it has left some significant questions unanswered, and in some respects has created new issues that did not exist formerly.

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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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Proposal commented on: ERCB Bulletin 2010 - 42, Invitation for Feedback on Draft Legislative Amendments for Removing Industrial Development Permits for Energy Resource Use

Yes. That’s right. In Bulletin 2010-42 issued on December 2, 2010 the ERCB announced that it is “proposing to remove industrial development permits (IDP) legislation from its mandate”. If that wasn’t clear enough the Bulletin goes on to state that “The ERCB is proposing to repeal Sections 28 to 31 of the CCA, [Coal Conservation Act, RSA 2000, c. C-17], Section 43 of the OGCA, [Oil and Gas Conservation Act, RSA 2000, c. O- 6] and Section 12 of the OSCA [Oil Sands Conservation Act, RSA 2000, c. O- 7]. The ERCB is also proposing to modify the definitions of a “processing plant” and “oil sands products” under the OSCA to provide greater clarity as to what types of facilities would fall under the ERCB’s jurisdiction.”

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PDF version: The Supreme Court of Canada clarifies the role of administrative tribunals in discharging the duty to consult 

Case considered: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43

In the 1950s British Columbia authorized Alcan to develop the Nechako and Kemano Rivers for power purposes to supply Alcan’s aluminum facility at Kitimat. This development occurred in the traditional territory of the Carrier Sekani Tribal Council (CSTC) First Nations. There was no consultation at that time. Since then Alcan has sold excess power from its facilities to BC Hydro (a Crown corporation) and in 2007 the parties negotiated an energy purchase agreement (EPA) to cover the period up until 2034. Sales have been growing in recent years as Alcan has found it more profitable to generate electricity than make aluminum: Kitimat (District) v. British Columbia (Minister of Energy and Mines), 2008 BCCA 81.

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PDF version: Public Rights Trump Private Privilege  

Case considered: J.O. v. Strathcona-Tweedsmuir School, 2010 ABQB 559

In December 2006 the Strathcona-Tweedsmuir School expelled J.O. based on allegations that she had been seen having sex with her boyfriend in the women’s washroom at the Calgary Golf and Country Club. The allegations were “mistaken” (para. 41). J.O. was rather suffering the predictable consequences of teenage drinking and a long-car ride; she was drunk and sick, and her boyfriend was in the bathroom helping to clean her up.

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PDF version: Lucy the Elephant v. Edmonton (City) 

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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