Author Archives: Shaun Fluker

About Shaun Fluker

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

Does a Privative Clause Completely Oust Judicial Review?

By: Shaun Fluker

PDF Version: Does a Privative Clause Completely Oust Judicial Review?

Case Commented On: Green v Alberta Teachers’ Association, 2015 ABQB 379

Green v Alberta Teachers’ Association is a short judgment by Justice T.D. Clackson in a judicial review of disciplinary action taken by the Alberta Teachers’ Association. A hearing committee organized under the bylaws of the Association found that Green had committed professional misconduct. Green appealed that decision to a 4 person appeal committee under the Association bylaws, and the appeal committee split 2 – 2 on whether to grant Green’s appeal. The tie vote resulted in the committee dismissing her appeal because of an Association bylaw that states the decision of a committee shall be by majority. Green sought judicial review on the grounds that it was procedurally unfair to lose her appeal on a tie or, alternatively, that the appeal committee’s decision was unreasonable for failing to follow an earlier Court of Appeal decision on point. Justice Clackson dismisses Green’s application, and in doing so he makes some interesting remarks on the application of privative clauses to judicial review.

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Eligibility for Nomination under the Local Authorities Election Act (Alberta)

By: Shaun Fluker

PDF Version: Eligibility for Nomination under the Local Authorities Election Act (Alberta)

Case Commented On: Mueller v Oko, 2015 ABCA 194

This short decision from the Court of Appeal considers the challenge by Mueller to the eligibility of Oko to be nominated as school board trustee in September 2013 for the Evergreen School Division under the Local Authorities Election Act, RSA 2000 c L-21. Mueller alleges that Oko was ineligible to be nominated because he was employed with the Pembina School Division at the time of his nomination and failed to take a leave of absence as required by section 22 of the Act. Justice Hillier dismissed Mueller’s application for judicial review in January 2014 and this post concerns the appeal of Justice Hillier’s decision.

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The Application of stare decisis in Administrative Decision-Making

By: Shaun Fluker

PDF Version: The Application of stare decisis in Administrative Decision-Making

Case Commented On: Altus Group v Calgary (City), 2015 ABCA 86

In Altus Group v Calgary (City), 2015 ABCA 86, the Alberta Court of Appeal confronts the application of stare decisis to administrative tribunal decision-making. Some would say it is a truism that statutory decision-makers are not bound by precedent given the fact-intensive and policy-laden nature of their work, and that most tribunal members have little or no substantive legal training. Jurists of Diceyan thought have surely held this position and indeed typically point to the very absence of stare decisis in administrative law to bolster their suspicion of and disregard for statutory decision-making and to justify the need for intrusive judicial scrutiny. In modern times, a tribunal seeking to downplay arguments based on precedent might be expected to respond along the lines of “[w]hile our earlier decisions may be relevant and even persuasive in this case, we are not bound by these previous rulings.” But on the other hand, many administrative law practitioners have no doubt appeared before a tribunal who references its earlier decisions and the need for consistency to support a particular ruling. Perhaps all we can say for sure is that the application of stare decisis to administrative decision-making is a tricky business.

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A Missing Issue in the 2015 Alberta Election: Curbing Carbon Emissions

By: Shaun Fluker

PDF Version: A Missing Issue in the 2015 Alberta Election: Curbing Carbon Emissions

Legislation Commented On: Specified Gas Emitters Regulation, Alta Reg 139/2007

One might think that curbing carbon emissions would be a key topic during an election in the province which emits more carbon emissions than any other jurisdiction in Canada. Carbon emission is after all an inherently political topic these days both at home and abroad. However, the absence of debate on how Alberta should address carbon emissions is one of the more defining features of the 2015 Alberta election. This is particularly noteworthy because of Ontario’s recent announcement that it will join the carbon emissions cap-and-trade scheme operating in Quebec and California under the Western Climate Initiative. Premier Jim Prentice stated that Alberta (see here) will not join this regional scheme, and recent media commentary has expressed concern with this position (see here).

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Where Are We Going on Standard of Review in Alberta?

By: Shaun Fluker

PDF Version: Where Are We Going on Standard of Review in Alberta?

Case Commented On: Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2015 ABCA 85

In Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City) the Court of Appeal has upheld an earlier chambers decision of Associate Chief Justice Rooke to set aside an Edmonton assessment review board decision. This ought to have been a fairly routine administrative law case, however the Court of Appeal chose to engage in the fundamentals of judicial review and purports to add a new exception to the presumption of deference I wrote about early in January 2015 on ABlawg (see Some Thoughts on the Presumption of Deference under the Dunsmuir Framework on Substantive Judicial Review). The Court of Appeal has perhaps also significantly altered the relationship between the superior courts and administrative tribunals in Alberta. I say this because on an initial glance, it is difficult to reconcile the reasoning of the Court of Appeal in this judgment with recent jurisprudence from the Supreme Court of Canada on standard of review generally and the jurisprudence in Alberta which has developed in relation to the Edmonton assessment review board itself. Administrative law scholars and practitioners will no doubt be interested to watch how this unfolds in Alberta.

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