Author: Shaun Fluker Page 15 of 37

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
Please click here for more information.

Case Commented On: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (CanLII)

The Supreme Court of Canada has reversed the Alberta Court of Appeal decision in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) which ruled the Highwood Congregation decision to expel one of its members was subject to judicial review on the basis of an alleged breach of procedural fairness. In this unanimous judgment, the Supreme Court ruled that the Court of Appeal stretched the reach of judicial review too far in holding that this mechanism of judicial oversight applies to a decision of a non-state actor.

Judicial Review on the Vires of Subordinate Legislation

By Shaun Fluker

On May 24, 2018

In Administrative Law

By: Shaun Fluker

PDF Version: Judicial Review on the Vires of Subordinate Legislation

Case Commented On: West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (CanLII)

Judicial review on the vires of subordinate legislation is a subject I previously examined in a March 2016 post concerning subordinate legislation enacted by the Alberta College of Pharmacists and its dispute with Sobeys over the use of consumer inducements in retail pharmacies. I noted back in 2016 there was some uncertainty over the standard of review a court should apply when reviewing the vires of legislation enacted by a statutory tribunal or other delegate. Indeed, the whole concept of judicial review on the vires of subordinate legislation is a bit murky in Canadian administrative law. The Supreme Court’s decision in West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (CanLII) addresses the topic, but unfortunately the Court is split and fails to situate its reasoning with the Court’s Katz Group Canada Inc. v. Ontario (Health and Long Term Care, 2013 SCC 64 (Katz) decision which also addresses the principles governing a vires determination of subordinate legislation. The majority in West Fraser Mills rules that the principles set out in Dunsmuir govern judicial review on the enactment of subordinate legislation by a statutory tribunal, and therefore where the tribunal’s governing legislation provides for the power to enact subordinate legislation the presumption of reasonableness applies to a review on the vires of that legislation. The dissenting justices hold the standard ought to be correctness.

Foreclosing Mortgagees’ Liability for Tenants’ Security Deposits

By Shaun Fluker

On April 13, 2018

In Administrative Law, Landlord/Tenant

By: Jonnette Watson Hamilton and Shaun Fluker

PDF Version: Foreclosing Mortgagees’ Liability for Tenants’ Security Deposits

Case Commented On: CIBC Mortgages Inc v Bello, 2018 ABQB 176 (CanLII)

This appeal from an order of a Tenancy Dispute Officer of the Residential Tenancy Dispute Resolution Service (RTDRS) is worth noting for several reasons. First, it appears that the question of whether a mortgagee becomes a “landlord” under the Residential Tenancies Act, SA 2003, c R-17.1 (RTA) upon foreclosing on leased residential premises had not been addressed before. This is an important question for tenants looking to recover their security deposits and for foreclosing mortgagees who have not received those security deposits from their mortgagor. Second, the standard of review to be applied on an appeal from a Tenancy Dispute Officer’s order has been controversial within the Court of Queen’s Bench of Alberta. Some decisions have held that correctness is the standard, whereas others, including this one, hold that the standard is one of reasonableness. Third, the court’s clear statement and elaboration of the purpose of the RTA–to address the power imbalance between landlords and tenants–should be helpful to tenants in future cases. Fourth, the decision is a good example of statutory interpretation and eminently suitable for a first year law school course on legislation. Finally, insofar as Tenancy Dispute Officers are not required to give reasons as part of their written orders, the occasional appeals of those orders (which must be accompanied by a transcript of the Tenancy Dispute Officer’s oral reasons) offer rare glimpses into the legitimacy of the dispute resolution services provided by the RTDRS.

Alberta Suspends Habitat Protection Plans for Endangered Woodland Caribou

By Shaun Fluker

On March 23, 2018

In Protection of Species

By: Shaun Fluker

PDF Version: Alberta Suspends Habitat Protection Plans for Endangered Woodland Caribou

Case Commented On: Minister of Environment and Parks March 19, 2018 Letter re: Alberta Draft Woodland Caribou Range Plan

On March 19 the Minister of Environment and Parks issued a letter stating Alberta is suspending plans to designate additional protected areas for endangered caribou habitat to allow for a further review of the socio-economic costs associated with implementing Alberta’s draft Woodland Caribou Range Plan. The Minister indicates this decision is in response to concerns raised in community consultations (see here) about the economic impacts of the proposed caribou protection and recovery measures in the Plan. There is also a not-so-subtle message from the Minister that if the federal government wants to see action on the caribou file, there needs to be a significant infusion of federal cash. However, the overall message here is the abdication of responsibility for protection and recovery of caribou. My intention in writing this short comment is to highlight where the Minister places an incorrect gloss on the law to conceal this failure to act.

Oversight and Enforcement in Bill C-69 Re: the Impact Assessment Act and the Canadian Energy Regulator Act

By Shaun Fluker

On February 26, 2018

In Environmental

By: Shaun Fluker

PDF Version: Oversight and Enforcement in Bill C-69 Regarding the Impact Assessment Act and the Canadian Energy Regulator Act

Bill Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

This post continues the conversation on ABlawg regarding Bill C-69. Martin Olszynski and Nigel Bankes provided an overview of the proposed Impact Assessment Act and Canadian Energy Regulator Act here and here. This post examines some of the oversight and enforcement provisions in the Bill, looking specifically at changes with respect to oversight by the Federal Court and enforcement of project conditions. There are a couple of problems which deserve some attention as Bill C-69 makes its way through the legislative process.

Author: Shaun Fluker Page 15 of 37

Judicial Review is about the Legality of State Decision-Making

Judicial Review on the Vires of Subordinate Legislation

Foreclosing Mortgagees’ Liability for Tenants’ Security Deposits

Alberta Suspends Habitat Protection Plans for Endangered Woodland Caribou

Oversight and Enforcement in Bill C-69 Re: the Impact Assessment Act and the Canadian Energy Regulator Act