Author: Shaun Fluker Page 20 of 38

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

By: Shaun Fluker

PDF Version: The Standard of Patent Unreasonableness Lives On

Case Commented On: British Columbia (Workers’ Compensation Appeal Tribunal) v Fraser Health Authority, 2016 SCC 25 (CanLII)

In its recent British Columbia (Workers’ Compensation Appeal Tribunal) v Fraser Health Authority, 2016 SCC 25 decision, the Supreme Court of Canada engages in a review of a tribunal decision which emanates from British Columbia. From the perspective of administrative law jurisprudence, what is noteworthy about this decision is that the Supreme Court applies the standard of patent unreasonableness in its review. Yes that’s right – this is the same standard of review which was shown the door by the Supremes in Dunsmuir. This decision reminds us that the standard of patent unreasonableness lives on in judicial review where a legislature has preserved it under a statute, as is the case in British Columbia with sections 58 and 59 of the Administrative Tribunals Act, SBC 2004 c 45, but offers nothing explicit on how this fits into general principles of administrative law.

Court of Queen’s Bench Strikes Prohibition on Pharmacy Inducements in Alberta

By Shaun Fluker

On May 6, 2016

In Administrative Law

By: Shaun Fluker

PDF Version: Court of Queen’s Bench Strikes Prohibition on Pharmacy Inducements in Alberta

Case Commented On: Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 232

In late March I wrote a post commenting on the difficult application of a standard of review analysis to a vires determination of subordinate legislation – see Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation? The decision before me then was Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 138, wherein Mr. Justice V.O. Ouellette selected the standard of correctness to assess the vires of a prohibition enacted as subordinate legislation by the Alberta College of Pharmacists (“College”). This comment now looks at the substantive decision issued April 22 by Justice Ouellette ruling that the prohibition is ultra vires the College. I think there are some doctrinal problems with the reasoning in this judgment which I explain below, and I conclude this comment by shining some light on the fact that the successful party – Sobeys – is a large and powerful national grocery retailer in Canada who appears to convince the Court that this matter is more about consumers than patients.

Occupier’s Liability Arises at the Garage Party

By Shaun Fluker

On April 21, 2016

In Torts

By: Shaun Fluker

PDF Version: Occupier’s Liability Arises at the Garage Party

Case Commented On: Motta v Clark, 2016 ABQB 211

This recent judgment written by Mr. Justice R.J. Hall caught my attention because the facts are a scenario with which I am familiar and I suspect other readers are as well: The impromptu garage party hosted by a neighbour. While some of us actually park vehicles in our garage, others turn their garage into a very comfortable social venue fully equipped with a state-of-the-art sound system, stocked beer and wine fridge, humidor, gas heating, and possibly even lounge chairs. In these households, the garage takes on the persona of a “man-cave”, where neighbours and friends get together for small talk in the surroundings of golf clubs, hockey nets, skis, bikes, tires, wrenches, air compressors, camping gear, dogs and a table saw. On the odd festive occasion, the garage becomes a sort of time vortex where you step in during the early evening and the next thing you remember is walking out the next morning. Motta v Clark tells the story of such a garage party gone wrong, and provides a word of caution for those who host such parties. It also reads like a tragedy of sorts, with the downfall of a friendship being played out in cross-examination before Justice Hall at the Court of Queen’s Bench.

Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation?

By Shaun Fluker

On March 30, 2016

In Administrative Law

By: Shaun Fluker

PDF Version: Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation?

Case Commented On: Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 138

The substance of the dispute in this decision is whether a prohibition enacted by the Alberta College of Pharmacists is lawful. Specifically, in April 2014 the College voted to amend its Code of Ethics to prohibit pharmacists from providing inducements – such as loyalty program points or other forms of consumer purchase rewards – to a patient for the acquisition of a drug or a service from them. The College provides a description of the inducement issue and its rationale for the prohibition here. Sobeys challenges the lawfulness of this prohibition, and thus seeks judicial review. It seems that the standard of review to be applied in this case became a significant issue in the hearing, and this decision by the Honourable Mr. Justice V.O. Ouellette is the Court’s reasons for selecting correctness – notwithstanding that both Sobeys and the College had agreed the standard should be reasonableness. The decision illustrates, or perhaps exposes, some uncertainty in the application of administrative law principles to legislative acts by delegates of the Legislature, and unfortunately I am not sure the reasoning provided by Justice Ouellette is helpful in resolving this uncertainty.

The Public Interest Exception to the Normal Costs Rule in Litigation

By Shaun Fluker

On March 7, 2016

In Access to Justice, Costs

By: Shaun Fluker

PDF Version: The Public Interest Exception to the Normal Costs Rule in Litigation

Case Commented On: Gendre v Fort Macleod, 2016 ABQB 111

This judgment by Madam Justice K.D. Nixon touches on the public interest exception to the normal rule in Canadian law that the unsuccessful party in litigation is liable to the successful party for either a portion of or all the successful party’s legal costs (commonly known as ‘costs follow the event’). The substantive matter in this case involved an application by the Mayor of Fort Macleod seeking to have the Court set aside bylaws and resolutions passed by the Council of the Town of Fort Macleod which removed the Mayor’s powers. The Mayor argued the passage of such bylaws and resolutions amounted to an abuse of process by the Council. Justice Nixon dismissed this judicial review application in Gendre v Fort Macleod, 2015 ABQB 623, and the media reported that the Council sought approximately $100,000 in legal costs against the Mayor. One of the arguments put forward by the Mayor in an attempt to shield himself from costs was that his action constituted public interest litigation.