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Author: Shaun Fluker Page 12 of 38

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
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Vavilov on Standard of Review in Canadian Administrative Law

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On February 6, 2020

In Administrative Law

By: Shaun Fluker

PDF Version: Vavilov on Standard of Review in Canadian Administrative Law

Case Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

In the summer of 2018, I wrote about disagreement within the Supreme Court of Canada over the role of contextual factors in the selection of a standard of review in Canadian administrative law (see The Great Divide on Standard of Review in Canadian Administrative Law). At that time, the Court had arrived at yet another fork in the road on standard of review and stated it would address the matter head-on in a hearing scheduled for late 2018. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov) is the result of that hearing, and Vavilov has, once again, amended the law applicable to selecting and applying the standard of review. This post is my analysis of Vavilov, and is organized as follows: (1) an overview on the law regarding standard of review up to Vavilov; (2) the law as per Vavilov on selecting the standard of review; (3) the law as per Vavilov on applying the standard of reasonableness; and (4) a short conclusion. I am admittedly somewhat late to this party. My colleague Nigel Bankes has previously written on an aspect of Vavilov here (which I reference below) and I also encourage readers interested in this topic to have a look at Paul Daly’s analysis of Vavilov here.

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Fortress Mountain and the Sale of Water from Kananaskis Country

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On December 12, 2019

In Environmental

By: Shaun Fluker

PDF Version: Fortress Mountain and the Sale of Water from Kananaskis Country

Matter commented on: Fortress Mountain Holdings Ltd. Application No. 003-00037369 under the Water Act, RSA 2000 c W-3

This is a short comment to raise awareness about a systemic problem in how Alberta Environment and Parks (AEP) administers its decision-making powers concerning the development of natural resources and assesses the environmental impacts associated with this development. It is a problem of transparency and more particularly, the absence of transparency and lack of any meaningful opportunity for public participation in the AEP decision-making process. This is not a new problem, and it is one which I canvassed more thoroughly in The Right to Public Participation in Resources and Environmental Decision-Making in Alberta published by the Alberta Law Review in 2015. In short, decisions made by AEP under the Environmental Protection and Enhancement Act, RSA 2000 c E-12 (EPEA) or the Water Act concerning the use or development of natural resources are generally made behind closed doors with no opportunity for public input and minimal disclosure. This makes a mockery of the statements of purpose set out in section 2 of EPEA and section 2 of the Water Act, which state that a purpose of each Act is to provide opportunities for citizens to give advice on decisions affecting the environment.

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Public Interest Standing and Wild Horses in Alberta

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On November 22, 2019

In Administrative Law, Environmental

By: Shaun Fluker

PDF Version: Public Interest Standing and Wild Horses in Alberta

Case commented on: Alberta’s Free Roaming Horses Society v Alberta, 2019 ABQB 714 (CanLII)

This decision grants public interest standing to Alberta’s Free Roaming Horses Society and one individual (the ‘Applicants’) seeking declarations and mandamus in relation to a 2005 ministerial designation of public lands under section 9 of the Stray Animals Act, RSA 2000, c S-20. The Applicants assert that the Minister responsible for the administration of public lands under the Act failed to comply with a statutory requirement to form an opinion in relation to designating lands upon which persons may be licensed to capture and dispose of wild horses. They accordingly sought a judicial declaration that the 2005 land designation is void and an order requiring the Minister to form the opinion and publish it prior to making any future land designations under section 9 of the Act. The Province responded that the Applicants do not have standing to commence these proceedings and that the proceedings should be struck as an abuse of process. The Province also sought summary dismissal on the basis that the Applicants’ claim is barred by a limitation period. In this decision, Mr. Justice B.A. Millar ruled that the Applicants have public interest standing, but he summarily dismissed the application because the proceedings relate to a decision made in 2005 which is far beyond the 6 month time limitation for seeking judicial review under section 3.15(2) of the Alberta Rules of Court, Alta Reg 124/2010.

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Public Interest in the Transfer of Licenses from Shell Canada to Pieridae Energy?

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On November 7, 2019

In Energy

By: Shaun Fluker

PDF Version: Public Interest in the Transfer of Licenses from Shell Canada to Pieridae Energy?

Matters commented on: AER Public Notice of Applications 1925399, 1925400, 1925403, 1925404, 1925405, and 1925406

On November 5 the Alberta Energy Regulator (AER) posted notice of six applications made by Shell Canada to transfer well, pipeline and facility licenses to Pieridae Alberta Production Ltd. While it is hard to discern from the AER information portal what is actually proposed, it would appear these license transfers relate to the disposition by Shell of its foothills sour gas assets to Pieridae Energy. These assets include wells, pipelines, and associated facilities in the Waterton, Jumpingpound and Caroline gas fields west and southwest of Calgary.

This brief comment asks (1) whether the AER should conduct a public interest hearing to assess what measures should be imposed by the AER to eliminate the risk of unfunded liabilities associated with the abandonment and reclamation of these aging sour gas facilities, and (2) should the Attorney General exercise its parens patriae jurisdiction in this case.

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Procedural Fairness and the Alberta Inquiry into Anti-Alberta Energy Campaigns

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On October 30, 2019

In Administrative Law, Energy

By: Shaun Fluker

PDF Version: Procedural Fairness and the Alberta Inquiry into Anti-Alberta Energy Campaigns

Order Commented On: Order in Council, O.C. 125/2019 (July 4, 2019)

In early July the Lieutenant Governor in Council commissioned an inquiry under power granted by section 2 of the Public Inquiries Act, RSA 2000, c P-39 (the ‘Inquiry’) to investigate and report on any anti-Alberta energy campaigns that are supported, in whole or in part, by foreign organizations. This comment focuses on the threshold question of whether the doctrine of procedural fairness applies to this Inquiry, and examines the potential legal sources of a fairness obligation. I am not digging into the specific allegations of unfairness already directed at the Inquiry (see here and here), but rather my question is more generally whether those persons who are investigated by the Inquiry have a legal right to know and meet the case being compiled against them. This question arises because, on the one hand, an inquiry such as this could be seen as merely a fact-finding mission with no mandate to decide anything or impose liability on anyone, and historically the common law neither imposed fairness obligations on such investigations nor provided remedies in these cases. On the other hand, the Terms of Reference for the Inquiry attached to Order in Council, O.C. 125/2019 suggest a somewhat close relationship between this investigation and decisions with potential adverse consequences for certain groups. As well, the overtly partisan basis for the Inquiry means it is likely that any findings or recommendations made by the commissioner have the potential to damage the reputation of persons named in his report, even if no further actions are taken by the Minister of Energy or the Lieutenant Governor in Council.

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