Monthly Archives: December 2010

The Continued Complexity of Administrative Law post-Dunsmuir

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

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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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Little Salmon and the juridical nature of the duty to consult and accommodate

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Case commented on: Beckman v Little/Salmon Carmacks First Nation, 2010 SCC 53

This is the first decision of the Supreme Court of Canada to deal head on with the relationship between the terms of a constitutionally protected land claims agreement (LCA) and the duty to consult and accommodate. The Court holds that the terms of an LCA do not exhaust the Crown’s duty to consult, or, to put it another way, an LCA is not a complete code but is embedded in the general legal system embracing both constitutional law norms and administrative law norms. This means that the Crown may have consultation obligations that are additive to those found in the text of an LCA. However, the majority articulates a narrow view of the content of the duty to consult and thus it was easy for the Court to find that the Crown — here the Government of Yukon (YTG) — had satisfied its obligations. In my view the content of the duty to consult articulated by the Court in this case is no greater than that which would be provided by the application of standard principles of administrative law. This impoverished view of the duty to consult is hardly likely to contribute to the constitutional goal of inter-societal reconciliation.

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The Energy Resources Conservation Board proposes to repeal provincial legislation

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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Domestic Violence and Provocation: The Door Remains Open

PDF version: Domestic Violence and Provocation: The Door Remains Open 

Case Considered: R. v. Tran, 2010 SCC 58

The Supreme Court’s most recent decision, R. v. Tran, is an Alberta case I commented on at the Court of Appeal level. Tran involves a man who killed his estranged wife’s lover and slashed his wife’s face, causing her permanent injury. The issue in this case was whether there was provocation arising from the fact that the accused found his wife in bed with her lover, such that he should be convicted of manslaughter rather than second degree murder. In a decision authored by Justice Louise Charron, the Supreme Court agreed with the Alberta Court of Appeal that provocation was not made out in the circumstances of the case, and upheld the accused’s conviction for murder. While this is a positive outcome, in my view the Court did not go far enough in contextualizing this case as one involving domestic violence, nor did it foreclose future uses of the provocation defence in this context.

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