Author: Shaun Fluker Page 21 of 36

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

PDF Version: The Fundamentals of Tribunal Standing and Bootstrapping in Judicial Review

Case Commented On: Ontario (Energy Board) v Ontario Power Generation Inc., 2015 SCC 44

In Ontario (Energy Board) v Ontario Power Generation Inc. the Supreme Court of Canada revisits the fundamentals of standing for a tribunal in a judicial review or statutory appeal of its impugned decision. The substance of this case involves utility regulation in Ontario, and my colleague Nigel Bankes has written on that substance here. The relevant facts for this comment are simply that the Ontario Energy Board disallowed certain labour costs submitted by Ontario Power Generation in its rate application to the Board. The Ontario Divisional Court dismissed an appeal by Ontario Power, but the Ontario Court of Appeal reversed this finding, set aside the Board’s decision, and remitted the case back to the Board for reconsideration. The Board appealed to the Supreme Court of Canada. No doubt in response to what then appears to be the Board attempting to defend its impugned decision before the Supreme Court, the proper role of the Ontario Energy Board in these proceedings was raised and my comment here focuses on what the Supreme Court of Canada decides in this regard.

The Niqab, the Oath of Citizenship, and the Blurry Line between Law and Policy

By Shaun Fluker

On September 28, 2015

In Immigration and Refugee Law

By: Shaun Fluker

PDF Version: The Niqab, the Oath of Citizenship, and the Blurry Line between Law and Policy

Case Commented On: Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 194

Canada (Citizenship and Immigration) v Ishaq involves a challenge by Zunera Ishaq against a federal requirement that she remove her niqab (a veil that covers most of the face) when taking the Oath of Citizenship at a public citizenship ceremony administered under the Citizenship Act, RSC 1985, c C-29. Ishaq was previously successful at the Federal Court Trial Division before Mr. Justice Keith Boswell in Ishaq v Canada (Citizenship and Immigration), 2015 FC 156 and on September 15 the Federal Court of Appeal issued a 6 paragraph decision from the Bench dismissing the Minister’s appeal and confirming that the federal requirement is unlawful. This is a significant policy issue for the Harper government. The Prime Minister himself has spoken strongly in favour of the requirement (see here), and not surprisingly the matter is now a significant issue in the federal election campaign. This comment uses the Federal Court of Appeal decision as an opportunity to revisit the rules governing the somewhat difficult relationship between law and policy.

What Policy Direction should Alberta Follow on Carbon Emissions?

By Shaun Fluker

On September 17, 2015

In Climate Change

By: Shaun Fluker

PDF Version: What Policy Direction should Alberta Follow on Carbon Emissions?

Matter Commented On: Climate Leadership – Discussion Document (Government of Alberta, August 2015)

Alberta’s Climate Change Advisory Panel is seeking public input on what direction provincial climate change policy should follow going forward. One method of providing your input is to complete an online survey on or before September 18. This is the second part of a two-step process announced by the Minister of Environment and Parks in late June 2015 (see here for the post by my colleague Nigel Bankes on this announcement). To inform this important public dialogue, in August 2015 the Climate Change Advisory Panel published the Climate Leadership – Discussion Document. This 62 page document sets out the overall carbon emissions profile in Alberta (at 9 – 17) and then discusses emissions by individual economic sector and summarizes policy tools that have been used in Alberta and elsewhere to reduce emissions in that sector: oil & gas (at 20 – 26), electricity (at 27 – 34), transportation (at 35 – 40), commercial and residential buildings (at 41 – 46), industrial and manufacturing (at 47 – 51), agriculture, forestry, and waste (at 52 – 56). The Minister’s announcement together with the overall tone and content of the discussion document make it clear the current intensity-based emissions reduction policy implemented by the Specified Gas Emitters Regulation, Alta Reg 139/2007 will be replaced on or before the end of 2017. I believe the centrepiece of Alberta’s new direction should be joining the cap-and-trade system currently operating in Quebec and California, along with Ontario which in April 2015 announced its intention to join.

At Long Last – Legal Protection for the Castle Wilderness

By Shaun Fluker

On September 10, 2015

In Protection of Spaces

By: Shaun Fluker

PDF Version: At Long Last – Legal Protection for the Castle Wilderness

Matter Commented On: Alberta Environment and Parks, News Release “Province to fully protect Castle area” (September 4, 2015)

On September 4 the Alberta government announced its intention to legally protect the area in southwestern Alberta known as the Castle wilderness with a new wildland provincial park and a new provincial park. What this legal protection exactly amounts to remains to be seen, but the September 4 announcement states there will be no further approvals granted for resource development in the Castle and existing approvals, other than for oil & gas, will be cancelled. Readers who follow land use decision-making in Alberta will know this announcement follows on the heels of the South Saskatchewan Regional Plan which was enacted just one year ago in September 2014 with its own direction for protecting the Castle. And those familiar with the Castle wilderness specifically will know this announcement is a monumental shift in policy direction. What follows is some context for this announcement, and some consideration of the applicable law in relation to implementing this new policy direction. The analysis concludes by suggesting the Alberta government consider enacting dedicated legislation to protect the Castle wilderness.

Justice for the Western Chorus Frog?

By Shaun Fluker

On August 27, 2015

In Protection of Species

By: Shaun Fluker

PDF Version: Justice for the Western Chorus Frog?

Case Commented On: Centre Québécois du droit de l’environnement v Canada (Environment), 2015 FC 773 (CanLII), TransCanada PipeLines Limited King’s North Connection Pipeline Project (July 2015), GHW-001-2014 (National Energy Board)

These two decisions were issued about a week apart in late June, and have nothing in common except for the fact that both concern the threatened Western Chorus Frog species in Canada. Québécois du droit de l’environnement v. Canada (Environment) is a Federal Court judgment issued by Justice Martineau ordering the federal Minister of the Environment to reconsider her refusal to issue an emergency protection order for the Western Chorus Frog under section 80 of the Species at Risk Act, SC 2002, c 29. The King’s North Connection Pipeline Project decision issued by the National Energy Board under section 58 of the National Energy Board Act RSC 1985, c N-7 exempts TransCanada from having to obtain a certificate under section 31 and thus effectively approves the construction of an 11 kilometre gas pipeline thru known habitat for the Western Chorus Frog in southern Ontario. I consider these posts together as a means for another comment on the intersection between species at risk protection and development in Canada. These decisions also demonstrate that species at risk issues can arise in congested urban areas, not just in the far away wilds.