Author Archives: Shaun Fluker

About Shaun Fluker

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

Procedural Fairness in the Issuance of a Ministerial Order to Dismiss a Municipal Councilor under Section 574 of the Municipal Government Act

By: Shaun Fluker

PDF Version: Procedural Fairness in the Issuance of a Ministerial Order to Dismiss a Municipal Councilor under Section 574 of the Municipal Government Act

Case Commented On: Buryn v Alberta (Minister of Municipal Affairs), 2017 ABQB 613 (CanLII)

Municipalities in Alberta are creatures of statute and thus subject to both the oversight of the Minister of Municipal Affairs (Minister) and Alberta courts. When the affairs in a municipality go offside, the Municipal Government Act, RSA 2000, c M-26 (MGA) provides mechanisms for bringing matters back into line. Municipal affairs in Thorhild County seem to have taken a turn for the worse several years ago, and led to the submission of a petition by electors asking the Minister to inquire into the conduct of the Thorhild municipal council and its chief administrative officer. The MGA provides the Minister with authority to conduct an inquiry into the affairs of a municipality or the conduct of municipal councilors. These powers are exercised on a fairly regular basis, with 33 entries listed on the government website since December 2009. The inspection into the affairs at Thorhild culminated in a Ministerial Order dismissing three members of the Thorhild council. On the eve of the recent municipal election, in Buryn v Alberta (Minister of Municipal Affairs) Madam Justice Dawn Pentelechuk quashed the Ministerial Order as unlawful for failing to afford the councilors procedural fairness.

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A Closer Look at Leave to Appeal Requirements Under the Municipal Government Act (Alberta)

By: Shaun Fluker

PDF Version: A Closer Look at Leave to Appeal Requirements Under the Municipal Government Act (Alberta)

Case Commented On: Arctos & Bird Management Ltd v Banff (Town), 2017 ABCA 300 (CanLII)

This is a decision by Justice Barbara Veldhuis to deny the applicant leave to appeal an approval for development of lands in the Town of Banff. Statutory leave to appeal decisions such as this rarely attract legal commentary because no substantive law is decided. These decisions result from an application before a justice in chambers from a person who seeks permission to proceed with a substantive appeal of an administrative decision. Nonetheless, I have been studying these leave to appeal decisions to better understand the basis upon which superior courts decide whether to hear an appeal from an administrative decision. Arctos & Bird Management provides me with an opportunity to add to the findings Drew Yewchuk and I previously disseminated on ABlawg in “Seeking Leave to Appeal a Statutory Tribunal Decision: What Principles Apply?” (“Seeking Leave”). Continue reading →

A Proposal for Effective Legal Protection for Endangered Species in Alberta: Introducing the Wildlife Species Protection and Recovery Act (Alberta)

By: Shaun Fluker

PDF Version: A Proposal for Effective Legal Protection for Endangered Species in Alberta: Introducing the Wildlife Species Protection and Recovery Act (Alberta)

Case Commented On: Wildlife Species Protection and Recovery Act, SA 2017, c W-?

I have followed law and policy on endangered species protection for nearly a decade, focusing primarily on Canada’s federal Species at Risk Act, SC 2002 c 29 [SARA]  and Alberta’s Wildlife Act, RSA 2000 c W-10 and the policies enacted thereunder. From time to time, I have glanced into the Ontario Endangered Species Act, 2007, SO 2007, c 6 [Ontario ESA] and observed a selection of decisions by the Ontario Environmental Review Tribunal – for example its decisions concerning the threatened blanding’s turtle. There are many who are working hard on the endangered species file, and some have enjoyed success in Federal Court obtaining rulings under SARA which are favourable towards protecting endangered species in Alberta and elsewhere. There is also an impressive amount of empirical research being conducted by scientists that sheds important light on the application of SARA. All of this is encouraging, but nevertheless I keep returning to an ABlawg post I wrote 7 years ago entitled Endangered species under Alberta’s Wildlife Act: Effective legal protection? In that piece I noted meaningful and effective legal protection for endangered species is largely a provincial matter in Canada and Alberta’s Wildlife Act does not provide effective legal protection for endangered species in this province. Nothing here has really changed since then. Enter the proposed Wildlife Species Protection and Recovery Act (Alberta). Continue reading →

Apply … Deny … Repeat: A Victim of Crime Story

By: Shaun Fluker

PDF Version: Apply … Deny … Repeat: A Victim of Crime Story

Case Commented On: Johnson v Alberta Criminal Injuries Review Board, 2017 ABCA 281 (CanLII)

This decision caught my attention because it reminded me of the movie Edge of Tomorrow wherein the main character lives the same day over and over fighting and dying in a repetitive time loop. Johnson v Alberta Criminal Injuries Review Board concerns an application by Johnson for a financial award under the Victims of Crime Act, RSA 2000 c V-3 as compensation for an injury he sustained as the victim of a stabbing. His initial 2010 application for compensation has been considered in numerous administrative adjudications under the Act and judicial scrutiny, and this most recent decision by the Court of Appeal sends it back for yet one more consideration. It is an interesting glimpse into a repetitive loop formed within an administrative regime, and the case also demonstrates why judicial oversight over the exercise of statutory power is an essential component of our legal system. Continue reading →

Chronicles of the Canadian High Court of Environmental Justice: Wildlands League v Ontario (Natural Resources and Forestry)

By: Shaun Fluker

PDF Version: Chronicles of the Canadian High Court of Environmental Justice: Wildlands League v Ontario (Natural Resources and Forestry)

Case Commented On: Wildlands League v Ontario (Natural Resources and Forestry), 2016 ONCA 741 (CanLII) (leave denied, [2016] SCCA No 549)

In a decision issued May 4, 2017 the Supreme Court of Canada denied the Wildlands League and Federation of Ontario Naturalists leave to appeal a decision of the Ontario Court of Appeal dismissing their application for judicial review on the vires of regulations enacted by the Lieutenant Governor in Council under the Ontario Endangered Species Act 2007, SO 2007, c 6 [Ontario ESA]. The Supreme Court did not provide reasons for denying leave. The applicants seek a declaration from this Court that the regulations are ultra vires the Lieutenant Governor in Council on the ground that the regulations defeat the purpose of the Ontario ESA to facilitate the protection and recovery of endangered species in Ontario. Continue reading →