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Author: Shaun Fluker Page 12 of 36

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
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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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The Elephant in the Courtroom Redux

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On July 2, 2019

In Administrative Law, Environmental, Intervenors and Standing

By: Shaun Fluker

PDF Version: The Elephant in the Courtroom Redux

Case Commented On: Zoocheck Canada Inc v Alberta (Minister of Agriculture and Forestry), 2019 ABCA 208 (CanLII)

Lucy the Elephant lives at the Edmonton Valley Zoo and, for more than a decade, her advocates have been calling on government officials to facilitate her transfer to a warmer climate. She is a long-time resident at the Edmonton Zoo (since 1977), and zoo officials responsible for her well-being assert that Lucy is well-cared for at the zoo and that it is not in her best interest to be moved. Her advocates dispute this position, and there is a dedicated campaign for an independent scientific assessment of Lucy that would produce an expert veterinarian opinion on whether she can and/or should be moved. In addition to this battle of medical experts, Lucy’s advocates have appeared before Alberta courts seeking to use the force of law to get the Edmonton Zoo to acquiesce on the move of Lucy. They have been unsuccessful at each turn. The first set of proceedings was almost 10 years ago, and I commented on them in Lucy the Elephant v. Edmonton (City) and in The Elephant in the Courtroom. The focus of this comment is the more recent proceedings and, in particular, the Court of Appeal’s ruling that Lucy’s advocates do not have standing to engage in legal proceedings to challenge the renewal of a permit for the Edmonton Zoo.

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Standing to Seek Judicial Review of a Statutory Decision

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On May 22, 2019

In Administrative Law

By: Shaun Fluker

PDF Version: Standing to Seek Judicial Review of a Statutory Decision

Case Commented On: Kozina v Knecht, 2019 ABQB 355

This is a decision by Mr. Justice Brian R. Burrows ruling that the applicant (Kozina) has standing to seek judicial review of a decision made by the Alberta Law Enforcement Review Board (Board). It seems that the applicant’s standing was contested at the outset of the judicial review hearing on March 29, and thus Justice Burrows initially heard submissions on standing. The merits of the judicial review application will now proceed at a later date. This ruling is of interest to me because of my ongoing work on standing to commence proceedings and also because the case involves the relationship between judicial review and a statutory right of appeal.

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Distracted Driving and the Traffic Safety Act

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On April 2, 2019

In Criminal, Statutory Interpretation

By: Shaun Fluker

PDF Version: Distracted Driving and the Traffic Safety Act

Case Commented On: R v Ahmed, 2019 ABQB 13 (CanLII)

Alberta added distracted driving offences to the Traffic Safety Act, RSA 2000 c T-6 in 2011, and two of these provisions are the subject of this decision by Justice John T. Henderson. The accused was charged under section 115.1(1)(b) for operating a vehicle while looking at his mobile phone. This particular section prohibits driving while holding, viewing or manipulating a hand-held electronic device or a wireless electronic device. The facts were not in dispute at trial, but the traffic commissioner ruled that a mobile phone is not an “electronic device” and thus acquitted the accused. The Crown appealed this decision to the Court of Queen’s Bench. A literal or plain reading of section 115.1(1)(b) does lead one to question the view that a mobile device is not an electronic device, but statutory interpretation is not always a literal exercise – particularly when the provisions themselves are written in a complicated or “inelegant” manner as is noted by the court here. This case is perhaps more about distracted drafting than it is distracted driving.

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Let’s Talk About Access to Information in Alberta Part Two: Alberta’s Policy on Wildlife Rehabilitation

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On January 21, 2019

In Protection of Species

By: Shaun Fluker and Drew Yewchuk

PDF Version: Let’s Talk About Access to Information in Alberta Part Two: Alberta’s Policy on Wildlife Rehabilitation

Policy Change Commented On: Alberta Orphan Black Bear Cub Rehabilitation Protocol, April 2018

In April 2018, Alberta Environment and Parks revised its wildlife rehabilitation policy to allow for the rehabilitation of black bears less than one year old. This change allows for the rehabilitation of orphaned black bear cubs in Alberta, an activity that has been prohibited since 2010 when Alberta implemented a policy change that heavily limited wildlife rehabilitation. Under the new policy, orphaned or injured black bear cubs and several other species have typically been euthanized by wildlife officers. Injured or orphaned wildlife with the good fortune of being found in the national parks might be spared this fate because of federal policy which is more accommodating to the interests of wildlife. For example, orphan bear cubs found in a washroom in Banff were sent to be rehabilitated outside of the province. The Public Interest Law Clinic at the University of Calgary had been working with a person interested in challenging Alberta’s prohibitive wildlife rehabilitation policy, and after the policy change for orphaned black bear cubs in April of 2018, we filed a freedom of information request under the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act) seeking to learn more about this policy shift. In December 2018 we received the disclosure materials, and this post explains what we learned as part of our ongoing series about using the access to information process in Alberta.

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