Author Archives: Shaun Fluker

About Shaun Fluker

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

Giving deference to the adequacy of reasons in Alberta

Case considered: Calgary (City) v Alberta (Municipal Government Board), 2012 ABCA 13

On January 16, 2012 the Alberta Court of Appeal issued a judgment that applies the Supreme Court of Canada’s decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 – ruling in Calgary (City) v Alberta (Municipal Government Board), 2012 ABCA 13 that the adequacy of reasons given by a statutory decision-maker are to be reviewed as a matter of substantive review on the reasonableness standard.

The decision in question results by way of appeal by the City of Calgary from Madam Justice Romaine’s decision in Calgary (City) v Alberta (Municipal Government Board), 2010 ABQB 719. I previously discussed that decision in a December 2010 Ablawg post (see here) and I have recently commented on the Supreme Court’s Newfoundland and Labrador Nurses’ Union decision (see here).

The purpose of this short comment is simply to note that the Court of Appeal has now applied the Supreme Court of Canada’s recent change in the law on sufficiency of reasons, and that earlier jurisprudence on reviewing the sufficiency of reasons given by a statutory decision-maker should be read with caution.

Giving deference to the adequacy of reasons

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Case considered: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62

Earlier this month the Supreme Court of Canada issued its decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, upholding the ruling of an arbitrator concerning vacation entitlements in a labour dispute. This unanimous Supreme Court of Canada decision written by Madam Justice Abella has changed the law in Alberta governing judicial review for adequacy of reasons provided by an administrative decision-maker. For earlier commentary and background for this post, readers should review my December 2010 ABlawg entitled “What is the applicable standard of review in assessing the adequacy of reasons?” The issue concerns the measure of judicial deference owed to an administrative decision-maker in reviewing the adequacy of reasons given for decision. Continue reading →

Public Interest Standing and a Statutory Right of Appeal

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Case Considered: Pembina Institute for Appropriate Development v Alberta (Utilities Commission), 2011 ABCA 302

The Pembina Institute for Appropriate Development (“Pembina”) recently sought leave of the Alberta Court of Appeal to appeal the June 30, 2011 interim decision of the Alberta Utilities Commission (“AUC”) to approve the construction of a coal-fired power generation facility by Maxim Power Corp. (“Maxim”) in Alberta. In Pembina Institute for Appropriate Development v Alberta (Utilities Commission), 2011 ABCA 302, Madam Justice Patricia Rowbotham denies the Pembina application for leave to appeal. However in her reasons for decision, Justice Rowbotham adds to the Alberta jurisprudence on public interest standing. I will first describe the parameters of the leave application before discussing the standing matter.

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The Elephant in the Courtroom

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Case Considered: Reece v Edmonton (City), 2011 ABCA 238

In March 2011 the Court of Appeal heard an appeal by Zoocheck Canada, People for the Ethical Treatment of Animals, and Tove Reece (collectively referred to as Zoocheck here) from Justice John Rooke’s August 2010 decision to strike Zoocheck’s application for a declaration that the City of Edmonton is violating the Animal Protection Act, RSA 2000 c. A-41 by keeping Lucy the Elephant in its Valley Zoo. See my previous ABlawg comment Lucy the Elephant v Edmonton (City) for some analysis of Justice Rooke’s decision (Reece v Edmonton (City), 2010 ABQB 538), the background concerning Lucy’s health problems and living conditions in the zoo, the applicable legislative framework, and the City’s motion to strike the Zoocheck application. In its August 2011 Reece v Edmonton (City) decision the Court of Appeal dismisses the Zoocheck appeal, with the majority written by Justice Frans Slatter upholding the finding at the Court of Queen’s Bench that the application for a declaration constitutes an abuse of process. In her lengthy dissenting opinion, Madame Justice Catherine Fraser rules the Zoocheck application is not an abuse of process and should go to trial. This Court of Appeal decision is noteworthy to me for three reasons: (1) the sharp contrast of legal theory underlying the majority and the dissent; (2) the environmental ethic informing Justice Fraser’s dissent; and (3) the comments made by Justice Fraser concerning the availability of public interest standing.

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Giving legal effect to the designation of the Grizzly Bear as an endangered species under the Wildlife Act (Alberta)

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Decision considered: Shell Canada – Application for licenses in the Waterton Field, 2011 ABERCB 007

In March 2008 the Alberta department of Sustainable Resource Development (“SRD”) issued the Alberta Grizzly Bear Recovery Plan 2008-2013 (“SRD Grizzly Bear Recovery Plan“) under section 6 of the Wildlife Act, RSA 2000, c. W-10. The goal of the SRD Grizzly Bear Recovery Plan is to restore and ensure the long-term viability of a self-sustaining grizzly bear population in Alberta (SRD Grizzly Bear Recovery Plan at page 20). On June 9, 2010 the Minister of Sustainable Resource Development enacted the Wildlife (Endangered Animal, 2010) Amendment Regulation, Alta Reg 86/2010 which designates the grizzly bear as an endangered species under the Wildlife Act. In this comment, I set out how this designation in law implicates the decision-making powers of the Energy Resources Conservation Board (“ERCB” or “Board”).

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