Author: Shaun Fluker Page 5 of 36

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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E. coli and the Public Health Act (Alberta)

On September 25, 2023

In Administrative Law, COVID-19, Health Law

By: Shaun Fluker and Lorian Hardcastle

Legislation commented on: Public Health Act, RSA 2000, c P-37; Communicable Diseases Regulation, Alta Reg 238/1985; Food Regulation, Alta Reg 31/2006

PDF Version: E. coli and the Public Health Act (Alberta)

The beleaguered public health system in Alberta is back in the spotlight with the devastating E. coli outbreak in Calgary. As of September 19, there were 38 lab-confirmed cases connected to the outbreak, 8 of whom were receiving care in hospital, along with 27 cases of secondary transmission. The outbreak is believed to be linked to daycares that use a central kitchen, although a precise food source has not yet been identified. The kitchen suspected to be the source of the E. coli outbreak has previous public health violations and there are calls for a public inquiry. The particular strain of E. coli involved in this outbreak secretes a toxin that can lead to serious organ damage. Nine children connected with this outbreak have been diagnosed with hemolytic uremic syndrome, which can lead to kidney failure.

Biodiversity Offsets and the Species at Risk Act (Canada)

By Shaun Fluker

On February 27, 2023

In Environmental, Protection of Species

By: Shaun Fluker

Matter Commented On: Environment and Climate Change Canada Draft Offsetting Policy for Biodiversity

PDF Version: Biodiversity Offsets and the Species at Risk Act (Canada)

The federal government has a laudable objective of ‘no net loss’ for development projects that will harm biodiversity in Canada. For threatened species who will lose habitat because of development, the concept of ‘no net loss’ means either avoidance, mitigation, or offsets. Avoidance of habitat loss (e.g. no project) is rarely seriously considered – and is really nonsensical when a project footprint overlaps with habitat – and efforts aimed at mitigation of adverse effects on threatened species are widely known to be pie-in-the-sky measures with little or no effectiveness (see here). Thus, a ‘no net loss’ outcome in the context of choosing between development and protecting habitat necessarily means the use of biodiversity offsets. David Poulton has written extensively for ABlawg on the topic of biodiversity offsets and resource development (see e.g. here), and a constant theme in this topic is the legal and policy vacuum on biodiversity offsets. In 2016, the Public Interest Law Clinic submitted comments on a proposed offsets policy under section 73 of the Species at Risk Act, SC 2002, c 29 (Drew Yewchuk and I posted that submission to ABlawg here). Environment and Climate Change Canada (ECCC) has recently issued a draft Offsetting Policy for Biodiversity which will replace its 2012 policy, and this post publishes my submission letter giving comments to ECCC on the Offsets Policy as it relates to threatened species, in response to the public engagement which closed on February 17, 2023.

Judicial Review on the Vires of Subordinate Legislation: Full Vavilov, Partial Vavilov or No Vavilov?

By Shaun Fluker

On February 6, 2023

In Administrative Law, Conflict of Laws

By: Shaun Fluker

Cases Commented On: Auer v Auer, 2022 ABCA 375 (CanLII) and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (CanLII)

PDF Version: Judicial Review on the Vires of Subordinate Legislation: Full Vavilov, Partial Vavilov or No Vavilov?

This comment examines two decisions issued concurrently by the Alberta Court of Appeal in late November 2022 that reject the application of a standard of review analysis when reviewing the vires (aka legality) of a ‘true’ regulation, (the need for the modifier is explained below). This is a topic that I have casually followed for some time. In 2016 I wrote Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation? and in 2018 I wrote Judicial Review on the Vires of Subordinate Legislation. Together these earlier posts describe an uncertainty that has reigned for years over whether a standard of review analysis applies to the vires determination of subordinate legislation. In its overhaul on standard of review in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov), the Supreme Court of Canada did not explicitly address this question (for my overview on standard of review under Vavilov see Vavilov on Standard of Review in Canadian Administrative Law). The uncertainty has evolved into a jurisprudential conflict. In Portnov v Canada (Attorney General), 2021 FCA 171 (CanLII) (Portnov), the Federal Court of Appeal ruled that a Vavilov standard of review analysis applies to the vires determination of regulations (Portnov at paras 23 – 28; see more recently Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 (CanLII)). In Auer v Auer, 2022 ABCA 375 (CanLII) (Auer) and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (CanLII) (TransAlta Generation) the Court of Appeal rules that Vavilov may partially apply to some regulations but not ‘true’ regulations (Justice Feehan departs from the majority in Auer on this point: Auer at para 117)).

For the Record: Who Makes COVID-19 Public Health Orders in Alberta?

By Shaun Fluker

On August 2, 2022

In COVID-19

By: Shaun Fluker and Lorian Hardcastle

Decisions commented on: CM v Alberta, 2022 ABQB 462 (CanLII); CM v Alberta, 2022 ABQB 357 (CanLII)

PDF Version: For the Record: Who Makes COVID-19 Public Health Orders in Alberta?

In an effort to be a frontrunner in the race to remove COVID-19 public health measures during the early months of 2022, the Alberta government made several notable moves, including decisions on masking. On February 8, 2022, the Premier announced that children would no longer be required to wear masks in school as of February 14 and that children under 12 would not be required to mask anywhere. On the same day, the Minister of Education took the opportunity to issue her own written direction that “[A]s of February 14, 2022 school boards will not be empowered by provincial health order or recommendations from the CMOH to require ECS – grade 12 students to be masked to attend school in person or to ride a school bus.” This direction by the Minister was a notable departure from her earlier position that schools were explicitly permitted to implement public health measures to respond to their own local context.

Anti-SLAPP Legislation in Ontario Developing into a Procedural Framework Post-Pointes Protection

By Shaun Fluker

On June 15, 2022

In Civil Procedure, Vexatious Litigants

By: Shaun Fluker

Case Commented On: Dent-X Canada v Houde, 2022 ONCA 414 (CanLII)

PDF Version: Anti-SLAPP Legislation in Ontario Developing into a Procedural Framework Post-Pointes Protection

This very short post has a simple purpose: to make the point that Alberta is falling behind Ontario (and British Columbia) in the development of anti-SLAPP procedures. Anti-SLAPP legislation provides a procedural mechanism for persons to seek and obtain summary dismissal of litigation solely intended to strategically suppress expression on matters related to the public interest.