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Author: Shaun Fluker Page 15 of 38

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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A Short Comment on the Public Interest Costs Exception

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On July 25, 2018

In Costs

By: Shaun Fluker

PDF Version: A Short Comment on the Public Interest Costs Exception

Case Commented On: Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 254 (CanLII)

The normal rule in Canadian litigation is that costs follow the event, and this is reflected in rules 10.29(1) and 14.88(1) of the Alberta Rules of Court, Alta Reg 124/2010 which state the successful party is entitled to a partial indemnification of its legal costs. In exceptional cases the successful party may be awarded full indemnification (solicitor-client) or no costs at all. An award of costs lies in the discretion of the judge. The public interest exception to the normal costs rule is available to shield the losing party from a costs award, and I discussed this exception at some length in The Public Interest Exception to the Normal Costs Rule in Litigation. For a good overview on costs in public interest environmental litigation see also Costs and Access to Justice in Public Interest Environmental Litigation. This comment touches briefly on the decision by the Court of Appeal to deny an application for the public interest costs exception in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 254 (CanLII).

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The Great Divide on Standard of Review in Canadian Administrative Law

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On July 23, 2018

In Administrative Law, Supreme Court of Canada

By: Shaun Fluker

PDF Version: The Great Divide on Standard of Review in Canadian Administrative Law

Case Commented On: Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 (CanLII)

In an unusual move earlier this year, the Supreme Court of Canada announced it would consider the nature and scope of judicial review in a trilogy of upcoming appeals in Bell Canada, Vavilov, and National Football League, and specifically invited the parties to make submissions on standard of review. This open invitation to revisit the standard of review framework established by Dunsmuir v New Brunswick, 2008 SCC 9 did not come as a surprise to followers of Canadian administrative law who have observed a divide form amongst the current members of the Supreme Court (only one of whom – Justice Abella – was sitting when Dunsmuir was argued) on how to select the standard of review. This division is fully apparent in Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 and is the subject of this post. Elysa Darling and Drew Lafond have recently analyzed the substance of the merits in Canadian Human Rights Commission on ABlawg here, and my post will focus only on the standard of review analysis by the Court in the case.

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Judicial Review is about the Legality of State Decision-Making

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On June 11, 2018

In Administrative Law

By: Shaun Fluker

PDF Version: Judicial Review is about the Legality of State Decision-Making

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.

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Judicial Review on the Vires of Subordinate Legislation

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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.

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Foreclosing Mortgagees’ Liability for Tenants’ Security Deposits

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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.

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