Author: Shaun Fluker Page 19 of 38

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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By: Shaun Fluker and Sharon Mascher

PDF Version: The Alberta Energy Regulator in the Post-Information World: Best-in-Class?

Statement Commented On: Alberta Energy Regulator Public Statement 2017-01-13

As readers will know, on Friday January 13, 2017 the Supreme Court of Canada released its decision in Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII) and our colleague Jennifer Koshan set out what the Court actually decided in her Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages comment posted to ABlawg on Monday January 16. Our comment here critically reflects on the Public Statement issued by the Alberta Energy Regulator (AER) on Friday the 13^th on the Ernst decision. This statement reads like the work of a spin doctor and harms the credibility of the AER as a ‘best-in class regulator’. In our view the Public Statement is inappropriate, contains inaccuracies, and should be rescinded by the AER.

CPAWS Presents to the Expert Panel for Environmental Assessment

By Shaun Fluker

On November 23, 2016

In Environmental

By: Shaun Fluker, Kristina Roberts, and Drew Yewchuk

PDF Version: CPAWS Presents to the Expert Panel for Environmental Assessment

Case Commented On: Expert Panel Review of Environmental Assessment Processes

The Expert Panel charged with reviewing Canada’s environmental assessment regime continues to hear presentations on recommended amendments to the federal environmental assessment process (Professor Martin Olszynski published his presentation to the Panel in an earlier post). The University of Calgary’s Public Interest Law Clinic was retained to advise and assist the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter and National Office in making recommendations to the Panel. On November 23, 2016, Professor Shaun Fluker together with Anne-Marie Syslak, the Executive Director of CPAWS – Southern Alberta, co-presented to the Panel on behalf of CPAWS. This submission focused exclusively on the current state of the federal environmental assessment process in Canada’s national parks under the Canadian Environmental Assessment Act 2012, SC 2012 c 19 s 52, a process which is perhaps best summarized as non-transparent, unaccountable, and completely discretionary. What follows is an excerpt from the CPAWS presentation to the Panel.

Comments on the Proposed Species at Risk Act Permitting Policy

By Shaun Fluker

On November 18, 2016

In Environmental, Protection of Spaces, Protection of Species

By: Shaun Fluker and Drew Yewchuk

PDF Version: Comments on the Proposed Species at Risk Act Permitting Policy

Proposed Policy Commented On: Government of Canada. Species at Risk Act Permitting Policy [Proposed]

Environment and Climate Change Canada has released a series of proposed new guidelines for interpreting various portions of the Species at Risk Act, SC 2002, c 29 (SARA). One of these new proposals is policy guidance on how section 73 of SARA will be interpreted and applied – the Species at Risk Act Permitting Policy. Section 73 is the provision in SARA which allows for the authorization of harm to listed endangered or threatened species or their critical habitat. In the absence of a section 73 permit, such harm constitutes an offence under SARA. The Public Interest Law Clinic was retained by the Alberta Wilderness Association and the Timberwolf Wilderness Society to assist them in formulating a submission to Environment and Climate Change Canada on this proposed new policy guidance for section 73, and this post reproduces the essence of that submission below.

This submission begins by setting out principles which should guide the interpretation of the Species at Risk Act, SC 2002, c 29 [SARA]. This submission then provides the relevant portions of section 73 along with judicial consideration thereof. This submission then proceeds by providing our comments on the proposed policy guidance.

The Supreme Court of Canada (By a Slim Majority) Confirms the Presumption of Deference in Alberta

By Shaun Fluker

On November 8, 2016

In Administrative Law, Supreme Court of Canada

By: Shaun Fluker

PDF Version: The Supreme Court of Canada (By a Slim Majority) Confirms the Presumption of Deference in Alberta

Case Commented On: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47

In 2015 the Alberta Court of Appeal issued two decisions which suggested the Court is attempting to curtail the presumption of deference in the judicial review (or statutory appeal) of statutory tribunal decisions in this province: see Edmonton (East) Capilano Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 (CanLII) (Capilano, ABCA) which I commented on in Where Are We Going on Standard of Review in Alberta? and Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII) which I commented on in Fundamental Legal Questions and Standard of Review in Alberta. The Supreme Court of Canada granted leave to appeal on both decisions, and on November 4 the Supreme Court issued its decision in Capilano: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 (Capilano) . The slim majority judgment (5-4) written by Justice Andromache Karakatsanis reverses the Court of Appeal on both its standard of review analysis and on the merits of the case by restoring the assessment review board decision. The result for standard of review analysis is that the presumption of deference to substantive decisions made by statutory tribunals should be alive and well in Alberta, but it should be noted there is a growing resistance to the presumption not only at the Alberta Court of Appeal but also within the Supreme Court of Canada.

Does Judicial Review Apply to Decisions Made by Religious Groups?

By Shaun Fluker

On September 15, 2016

In Administrative Law

By: Shaun Fluker

PDF Version: Does Judicial Review Apply to Decisions Made by Religious Groups?

Case Commented On: Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII)

September at the law school for me includes getting back to the basics of administrative law with the 2Ls as we begin another academic year in the JD curriculum. Early on we study Justice Rand’s seminal 1959 judgment on abuse of discretion in Roncarelli v Duplessis, [1959] SCR 121 (CanLII) (as an aside for some interesting footage of media coverage on Roncarelli see here – thanks to my colleague Professor Martin Olszynski for passing this along), and then we move along to the doctrine of procedural fairness and the threshold question of when does a decision-maker exercising authority owe a duty of fairness. As it turns out, the Alberta Court of Appeal has very recently split over this threshold question in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) and this is the subject of my comment here. The point of interest in Wall for administrative law is that the majority (written by Madam Justices Paperny and Rowbotham) rules the doctrine of procedural fairness applies to the impugned decision of the Highwood Congregation even though it is a non-statutory entity exercising power that is not sourced in legislation and does not purport to affect legal rights. Justice Wakeling provides a strong dissent on this point.